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Archived: 05/03/2007 at 18:14:56
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Thursday, May 03, 2007 "[T]he Constitution is not violated by a prison's forcing a prisoner who is assigned to work in an unhealthy environment to be inoculated against the microbes that make it unhealthy." Requiring a state prisoner to be inoculated against hepatitis is not cruel and unusual punishment, but exposing the prisoner to cigarette smoke may be, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled today in an opinion written by Circuit Judge Richard A. Posner. Posted at 12:37 PM by Howard Bashman "2007 High Court Candidates Responses To The Legal Intelligencer's Questions": The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, asked the candidates running for election to the Supreme Court of Pennsylvania a series of interesting questions. The candidates' answers can be accessed online via this link. Posted at 12:20 PM by Howard Bashman "The Eighth Circuit plans to implement Electronic Case Filing in all cases effective June 1, 2007. If you have any pending cases it is important that you register at this time." So advises a notice that the Clerk's Office of the U.S. Court of Appeals for the Eighth Circuit issued yesterday. The Eighth Circuit remains at the forefront of the effort to expand electronic case filing, now used in most federal district courts, to the federal appellate court level. Eventually, ECF is expected to expand throughout the entire federal appellate court system, which is one of the reasons I find it interesting to keep tabs on how the Eighth Circuit's roll-out of appellate ECF is proceeding. "Hearing on The Continuing Investigation into the U.S. Attorneys Controversy": This morning's House Judiciary Committee hearing can be viewed live, online by clicking here (RealPlayer required). Posted at 10:28 AM by Howard Bashman "Mentally ill man's 3-strikes sentence upheld; Thief received term of 25 years to life for stealing liquor": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal appeals court upheld a mentally ill man's three-strikes sentence of 25 years to life Wednesday for shoplifting two bottles of liquor from a Southern California market, a sentence that a dissenting judge called 'barbarous.''" Yesterday's non-precedential ruling of the U.S. Court of Appeals for the Ninth Circuit consists of a three-page majority opinion and a sixteen-page dissenting opinion. "Treaties apply to foreign prisoners, too: The Supreme Court should uphold a treaty granting consular visitation rights to foreigners on Death Row." The Los Angeles Times contains this editorial today. Posted at 09:10 AM by Howard Bashman "Justice Department looking into prosecutor hirings; Accusations that an aide considered party politics raise more concerns of partisan practices at the agency": This article appears today in The Los Angeles Times, along with an article headlined "Lam defends her performance as a U.S. attorney; Statements by her and several others show they are increasingly convinced politics were behind their firings." Today's edition of USA Today contains an article headlined "Senate subpoenas Gonzales for Rove information; Query: Whether adviser was tied to firings." And in The New York Times, Law Professor Frank Bowman has an op-ed entitled "He's Impeachable, You Know," while Arnold I. Burns has an op-ed entitled "Two Parties, One Law." The Boston Globe is reporting: Today's newspaper contains articles headlined "Marriage battle could broaden; Gay rights activists ask aid from DNC" and "Do pit bulls need a law of their own? Idea of breed-specific measure stirs fierce debate." Posted at 08:54 AM by Howard Bashman "A Plan To Redefine Teen Sex Offenders": This article appears today in The Hartford Courant. Posted at 08:50 AM by Howard Bashman "Kick in the Pants: Just deserts for a ludicrous lawsuit." The Washington Post today contains an editorial that begins, "Is there anything more absurd than someone pursuing a $65 million lawsuit over a lost pair of pants? Well, how about this same person being in a position to adjudicate the cases of other people? Or that there's a chance of his getting a new 10-year term as judge? A panel of four D.C. officials is considering the reappointment of administrative law judge Roy L. Pearson Jr. in light of devastating publicity about a court case he brought." Posted at 08:40 AM by Howard Bashman "Edited Transcripts Authorized; Classified Material at Issue in Case of Former NSA Worker": The Washington Post today contains an article that begins, "The attorney for a former National Security Agency employee convicted of unlawfully possessing classified material will be given redacted versions of court transcripts he has been seeking for more than seven months, a federal prosecutor said yesterday in U.S. District Court in Greenbelt." Posted at 08:32 AM by Howard Bashman "In House, New Effort to Protect Journalists From Forced Disclosure of Sources": The Washington Post contains this article today. And The New York Times today contains an editorial entitled "Toward a Federal Shield Law." "Exonerations Change How Justice System Builds a Prosecution; DNA Tests Have Cleared 200 Convicts": This article appears today in The Washington Post. Meanwhile, in news from Ohio, The New York Times reports today that "Court Rejects Limit on Bids by Convicts for DNA Tests." And The Cleveland Plain Dealer reports that "Jail doors opened to more DNA tests; Court: Prosecutors won't have final say." My earlier coverage of yesterday's ruling of the Supreme Court of Ohio appears at this link. "Akron parking project hits U.S. barriers; Judges cite security, threaten relocation of federal offices. City plans meeting today": The Akron Beacon Journal today contains an article that begins, "U.S. officials are threatening to relocate their downtown federal offices -- and 300 jobs -- if Akron moves forward on a plan to build a $20 million parking deck that would come within one foot of the federal building. In a strongly worded letter to Mayor Don Plusquellic, Judges James G. Carr and Randolph Baxter invoke the memory of the Oklahoma City bombing and say city officials have essentially ignored their security concerns over construction plans for South Main Street." Posted at 08:20 AM by Howard Bashman "Lawsuit challenges Ohio law; Birth-control case tests limits on damages won": The Cincinnati Enquirer today contains an article that begins, "When she decided to use a birth control patch in 2005, Anderson Township's Melisa Arbino had no idea she would be thrust into a legal fight that aims to declare an Ohio law unconstitutional and is being watched nationally." Posted at 08:14 AM by Howard Bashman "An Exit Strategy for Guantanamo": This editorial appears today in The New York Times. And The Boston Globe today contains an editorial entitled "Another Guantanamo outrage." "FBI Frets in Spy Case Over China": Josh Gerstein has this article today in The New York Sun. Posted at 07:50 AM by Howard Bashman "A Recent Opinion Shows a Clear Split Between Chief Justice Roberts and Justice Alito On Federalism Issues - With Roberts Displaying Justice O'Connor's Respect for the States, and Alito Lacking that Respect": Marci Hamilton has this essay online today at FindLaw. Posted at 07:40 AM by Howard Bashman Wednesday, May 02, 2007 "Ex-Aide to Gonzales Accused Of Bias; Justice Scrutinizing Politics in Hiring": This front page article will appear Thursday in The Washington Post. Tomorrow's newspaper will also contain an article headlined "Tester Calls on Montana U.S. Attorney to Resign." The New York Times on Thursday will report that "Justice Dept. Announces Inquiry Into Its Hiring." And McClatchy Newspapers report that "Senate panel subpoenas Rove's e-mails about U.S. attorneys." Here's a newsflash, doctor -- fried chicken and french fries aren't good for the arteries: The Associated Press provides an article headlined "Trans Fat Lawsuit Against KFC Tossed Out" that begins, "A federal judge on Wednesday dismissed a lawsuit brought by a doctor who accused KFC of not telling customers that it used trans fats to fry its chicken. In an occasionally sarcastic opinion, U.S. District Judge James Robertson said Dr. Arthur Hoyte could not show that he was harmed by KFC's use of the artery-clogging fats." You can access today's ruling of the U.S. District Court for the District of Columbia at this link. "Court stays Moore execution": The Lincoln Journal Star provides a news update that begins, "Condemned murderer Carey Dean Moore's execution was stayed Wednesday by a divided Nebraska Supreme Court, whose majority said the court had acted prematurely when it issued a death warrant in the case. Supreme Court Judge John Gerrard, writing for the 4-3 majority, said the court should have withheld the death warrant until it resolved another death row inmate's constitutional challenge of the electric chair." And The Associated Press reports that "Neb. High Court Stays Electrocution." You can access today's ruling of the Supreme Court of Nebraska at this link. Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained audio segments entitled "Fired U.S. Prosecutors Slam Former Bosses" and "Washington State Sex-Offender Policy Criticized." And today's broadcast of "Day to Day" contained an audio segment entitled "Texas Newspaper Accused of Tort-Reform Bias." RealPlayer is required to launch these audio segments. Don't bother us by arguing over what some federal district judge may have said in another case, Seventh Circuit tells lawyers: On behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, Chief Judge Frank H. Easterbrook today issued a decision that concludes: [D]ecisions of district judges have no authoritative effect. District judges' opinions often contain persuasive observations, but these can be incorporated into the parties' briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court's opinion "really means" and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.I guess the same could be said of non-precedential federal appellate court opinions, which Federal Rule of Appellate Procedure 32.1 now allows parties to cite to federal appellate courts. The reality is that advocates will always regard a legal proposition that a judge has accepted -- even if only a "lowly" federal district judge -- as potentially more worthy of another court's credence than a proposition of law for which no authority is cited. Posted at 05:32 PM by Howard Bashman "Christian Postings' Removal Upheld": The Associated Press provides a report that begins, "School officials did not violate a teacher's First Amendment rights when they removed Christian-themed postings from his classroom, a federal appeals court ruled Wednesday." You can access today's ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link. When bots attack: The online host of this blog tells me that two bots have been attacking this afternoon, and, as a result of this DOS attack, online access to this web site has been sluggish to non-existent. As those attacks diminish, access to "How Appealing" should be improving. Posted at 05:15 PM by Howard Bashman On Sunday, May 6, 2007, this blog will turn five years old: In a pleasant coincidence, on Sunday I'm planning to attend a Milwaukee Brewers baseball game at Miller Park with someone mentioned in the second post that I published on this blog's very first day. Since coming into existence nearly five years ago, this blog resulted in the creation of at least one new word; reported on musings about Seventh Circuit Judge Richard A. Posner's undergarments during one of that court's oral arguments; and was foisted on a federal government attorney at an Eighth Circuit oral argument as required reading (perhaps adding insult to injury, that attorney's client later lost the appeal). To mark this blog's rapidly forthcoming fifth anniversary, I am hereby soliciting from readers via email any interesting stories they may wish to share about "How Appealing," whether good, bad, or indifferent. Starting on May 6, 2007, I will reprint here the emails that I find likely to be of greatest interest to this blog's readership. If you email me in response to this request, please let me know whether I can include your name if I select your email for publication. "Prosecutors' Lose Power Over DNA Testing": The Associated Press provides a report that begins, "A law giving prosecutors the final say on whether an inmate can apply for DNA testing is unconstitutional because that authority is meant for judges, a unanimous Ohio Supreme Court ruled Wednesday. The ruling overturned a portion of a state law that allows inmates who pleaded guilty to crimes to request DNA testing after their conviction." You can access today's ruling of the Supreme Court of Ohio at this link. And the court's Office of Public Information provides this summary of the ruling. "Black Hole: Inside Bagram, the other Guantanamo." Eliza Griswold has this essay in the May 7, 2007 issue of The New Republic. Posted at 12:11 PM by Howard Bashman Available online from Reason: Jacob Sullum has an essay entitled "Good Cop, Bad Doctor: William Hurwitz's conviction tells physicians to put drug control above pain control." And Bert Gall has an essay entitled "Post-Kelo America: An Optimist's View -- Reforms are making progress." "They Know Best: Melody Rose's book charts the rise of paternalism in Supreme Court doctrine on abortion." Scott Lemieux has this essay online at The American Prospect. More information about the book in question is available at this link. Posted at 12:03 PM by Howard Bashman "Will Schwarzenegger's new death chamber actually help inmates? If building a new lethal-injection facility will improve quality of life for prisoners on California's death row, I'm for it." Sara Catania has this essay today at Salon.com. Posted at 12:00 PM by Howard Bashman Online today at "Balkinization": Jack M. Balkin has a post titled "Ronald Reagan on Sandra Day O'Connor." And Marty Lederman has a post titled "Why Closing Guantanamo Might Not be Such a Good Idea." "A New Judicial Crisis: Judges Falling Asleep." Does a 26-page study about judges falling asleep on the bench make for riveting reading? Click here to find out. Thanks to Peter Lattman at WSJ.com's "Law Blog" for the pointer. Posted at 11:50 AM by Howard Bashman "Law firm sued over forgery by attorney": The Rocky Mountain News last Friday published an article that begins, "A prominent Denver law firm is being sued after one of its attorneys forged a federal judge's signature on a legal document." The complaint initiating suit, filed last Tuesday in the U.S. District Court for the District of Colorado, can be accessed here. I have also posted online Exhibit B to the complaint. Thanks to "Above the Law" for the pointer. "Analysis: The State of the Court -- May 2007 -- Part I." Tom Goldstein has this lengthy post at "SCOTUSblog." Posted at 11:34 AM by Howard Bashman "Interview with Judge Alex Kozinski" back online: Last Friday, I had a post titled "Ninth Circuit Judge Alex Kozinski's take-down of blogs is itself taken down" noting that the "Tech LawForum" web site hosted by the High Tech Law Institute at Santa Clara Law School had removed all traces -- audio segments and transcripts -- of an interview, which Law Professor Eric Goldman first drew attention to on his blog, after certain of Judge Kozinski's remarks had drawn criticism from within and outside of the blogosphere. In a positive development, the "Tech LawForum" web site has once again begun to provide online access to all four audio segments of Judge Kozinski's cyberlaw talk. You can access the audio via this link. Judge Kozinski discusses blogging, David Lat, Judge Kozinski's quest to be crowned "Male Superhotty of the Federal Judiciary," me, and this blog in the first of the four audio segments available via that link. Just as the audio and transcripts disappeared without explanation late last week, they have now reappeared without explanation. You can access my extensive earlier coverage via posts here and here. "Ruling chastises state on unclaimed property": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The state of California, which is holding $5 billion worth of bank accounts, stocks and other property it classifies as abandoned, appears to be violating the owners' rights by seizing and selling their property without notifying them, a federal appeals court says." You can access Monday's non-precedential ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. "Wis. case may help political workers here": The Chicago Sun-Times today contains an article that begins, "The federal appellate court's decision to free from prison an aide to Wisconsin's governor could help plenty of political operatives in Illinois. In addition to convicted Chicago patronage chief Robert Sorich, indicted ex-Streets and Sanitation Commissioner Al Sanchez and perhaps even convicted former Gov. George Ryan could be among those benefitting." And a related article is headlined "Mayor's office linked in Sorich appeal; Judge questions where power came from, may be nod to ruling that cleared aide." Meanwhile, The Chicago Tribune reports today that "Decision in a 2nd case lifts Sorich; Ex-patronage chief will base appeal on U.S. judge's ruling." "Supreme Court Justice Breyer to Take on Shakespeare's Measure for Measure and the Art of Judging": This press release, issued yesterday, discusses an event scheduled to occur in Boston on June 12, 2007. According to the press release, ABC News correspondent Jan Crawford Greenburg will also be there. Posted at 09:20 AM by Howard Bashman "Ruling could aid challenge to UW stem cell patents; Supreme Court affirms basis of patent objection": The Milwaukee Journal Sentinel today contains an article that begins, "A Supreme Court ruling this week could make it more difficult for a Wisconsin foundation to defend key embryonic stem cell patents against challenges by two groups, some patent experts and representatives of those groups said Tuesday." Posted at 09:15 AM by Howard Bashman "Trademark battlefield: Some companies filing lawsuits against search engines argue ad sales generated from registered names are infringing on trademark rights." This article appears today in The Chicago Tribune. Posted at 09:08 AM by Howard Bashman "The year for a shield law": The Boston Globe today contains an editorial that begins, "Steadily, prosecutors and plaintiffs are showing an increasing desire to make their cases on the backs of reporters, poking into their confidential notes and information, often obtained with the promise of anonymity. And judges are increasingly turning the screws by threatening journalists with jail time unless they break that promise. Too often, judges are carrying out the threat." Posted at 09:05 AM by Howard Bashman "TB patient jailed after not following doctor's orders; A Phoenix man is under lockdown after going out in public without a mask and not taking prescribed medication": This article appears today in The Los Angeles Times. Posted at 09:00 AM by Howard Bashman "Lawful incest may be on its way": Columnist Jeff Jacoby has this op-ed today in The Boston Globe. Posted at 08:40 AM by Howard Bashman "Rogers Won't Hear Gay Marriage Case; New Chief Justice Cites Involvement Of Husband's Firm": The Hartford Courant today contains an article that begins, "The state Supreme Court's new chief justice, Chase T. Rogers, will not preside over the most significant case to be heard by the court this year, in which eight couples are challenging the ban on same-sex marriage. The landmark constitutional case, Kerrigan et al v. the state Department of Public Health, will be argued before a full panel of the court May 14." Posted at 08:37 AM by Howard Bashman "Lawsuit challenges limits on what judicial candidates may say": The Associated Press provides this report from Pennsylvania. Posted at 08:30 AM by Howard Bashman "Both sides find victory in Mo. abortion decision": The St. Louis Post-Dispatch today contains an article that begins, "The Missouri Supreme Court upheld a law Tuesday that makes it more difficult for teens to obtain an abortion without parental consent, but it did so in a way that at least partly pleased abortion rights advocates. The author of the anti-abortion measure applauded the ruling, even as Planned Parenthood heralded the decision as a victory to those who provide advice to pregnant teens." And The Kansas City Star reports today that "Missouri abortion law ruled legal." My earlier coverage of yesterday's ruling of the Supreme Court of Missouri appears at this link. "Many female lawyers dropping off path to partnership": The Boston Globe contains this article today, while a related graphic appears here. Posted at 08:22 AM by Howard Bashman "Residency Clause Adds Fuel To Dispute Over U.S. Attorneys; One Prosecutor Gets an Exemption, Another Gets Fired": This article appears today in The Washington Post. Bloomberg News reports that "McNulty Asserts He Knew Little of Firings, Aides Say." And in USA Today, Ronald Goldfarb has an op-ed entitled "Crossing a line at Justice -- How an attorney general handles outside political forces is critical to the mission of true justice; Alberto Gonzales could have learned a thing or two from one of his predecessors: RFK." "Administration Pulls Back on Surveillance Agreement": The New York Times today contains an article that begins, "Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January." In addition, the newspaper contains an editorial entitled "Spying on Americans." And The Washington Post reports today that "Intelligence Chief Decries Constraints; Update of Surveillance Law Urged." "Penalty Stands in Congressmen's Battle Over Leaked Phone Call": The Washington Post contains this article today. Today in The New York Times, Adam Liptak reports that "Court Says Congressman Must Pay Damages." The Seattle Post-Intelligencer reports that "Appeals court rules against McDermott in phone call case." The Hill reports that "Court sides with Boehner in ethics case." And yesterday evening's broadcast of NPR's "All Things Considered" contained an audio segment entitled "Court Settles Fight Between Boehner, McDermott" (RealPlayer required). My earlier coverage of yesterday's en banc D.C. Circuit ruling can be accessed here. "Giuliani's Tie to Texas Law Firm May Pose Risk": This article appears today in The New York Times. Posted at 07:48 AM by Howard Bashman "Donald P. Lay, 80, Federal Judge Notable in Rights Cases, Dies": The New York Times today contains an obituary that begins, "Donald P. Lay, a former chief judge of the United States Court of Appeals for the Eighth Circuit who rigorously defended the rights of women, Native Americans and convicts during his 40 years on the bench, died Sunday at his home in North Oaks, Minn. He was 80." Yesterday evening, a reader emailed to say: I'm a recent Penn Law grad and regular reader of your blog. Judge Donald Lay spoke at a conference in the spring 2005 at Penn on drug policy, so I was very sad to read about his passing on your blog. Judge Lay's passion on the subject of drug policy reform was impressive, to say the least, and he had truly made it his crusade to convince the federal courts, Congress, DoJ and anyone else who would listen that the federal drug crime judicial process we have in this country was broken and in dire need of fixing. I don't know how much you're interested in commenting on Judge Lay's passing beyond mentioning it today, but in case you wanted to give a moment of attention to one of his most recent passions, here's one of the many pieces he wrote on the subject.I thank that reader for her email. And at "Power Line," Scott Johnson offers these reflections. "Sex offenders may get special tags; Eye-catching license plates proposed by lawmakers in Wisconsin, Ohio, Alabama": This article appears today in USA Today. Posted at 07:35 AM by Howard Bashman Tuesday, May 01, 2007 "Death penalty foe pleads guilty over filings; The investigator, accused of perjury, forgery and falsifying clemency documents on behalf of death row inmates, faces a five-year sentence": The Los Angeles Times contains this article today. The Sacramento Bee reports today that "Death-penalty foe pleads guilty." And The San Francisco Chronicle contains an article headlined "5-year term for investigator in forgery case." "Gitmo: still a 'legal black hole'; The White House should stop hampering lawyers working for Guantanamo Bay detainees, and Congress should provide habeas relief." This editorial appears today in The Los Angeles Times. Posted at 11:57 PM by Howard Bashman "Order In The Courts: Borden Shepherds Judiciary Through Tumultuous Year." Today in The Hartford Courant, Lynne Tuohy has an article that begins, "Supreme Court Justice David M. Borden never parked his car in the space reserved for the chief justice, didn't take the chief's chair at the head of the table during court conferences and didn't refer to himself as the acting chief justice. But in his yearlong role as de facto chief, Borden led the judicial branch out of an unprecedented scandal and crisis in public confidence and into a new era of openness and accountability." Posted at 11:48 PM by Howard Bashman "Portrait of a Lady Justice": law.com's Tony Mauro provides this report. Posted at 11:35 PM by Howard Bashman "Raise for State Judges Gets Caught in Crossfire Between Spitzer and Bruno": This article appears today in The New York Times. Posted at 10:20 PM by Howard Bashman "Ex-Westar execs face third trial; Federal prosecutors did not say on what charges David Wittig and Douglas Lake would be retried": The Kansas City Star contains this article today. And The Topeka Capital-Journal reports today that "Wittig, Lake face third trial; Prosecutors elect to try ex-Westar executives based on charges from 2003." "Some Ask if U.S. Attorney Dismissals Point to Pattern of Investigating Democrats": This article appears today in The New York Times. The Washington Post reports today that "Justice Dept. Official Says His Role in Firings Was Limited." And The Los Angeles Times reports that "Gonzales allowed aides some hiring power, records show; A 2006 order gave his chief of staff and White House liaison authority over 135 jobs designated for political appointees." In addition, Elizabeth Holtzman has an op-ed entitled "Alberto Gonzales' safety net: Confirmation hearings for his successor could spawn criminal investigations of the White House." "Vonage requests retrial in Verizon patent dispute": c|net News.com provides a report that begins, "A pivotal U.S. Supreme Court ruling designed to make it easier to challenge obvious patents prompted Vonage on Tuesday to ask for a new trial in an ongoing dispute with Verizon. One day after the high court released a unanimous opinion widely viewed as one of the most sweeping changes to patent law in years, the struggling Internet phone company asked the U.S. Appeals Court for the Federal Circuit to put its pending appeals process on hold and send the case back to the lower court for a new trial." And Reuters reports that "Vonage asks for retrial of key patent case." Update: WSJ.com's "Law Blog" has posted the new trial request at this link. "Law Day": The New York Times today contains an editorial that concludes, "The less committed a president is to the law, the more need there is for Law Day, which makes it a holiday whose time has come." Posted at 08:45 PM by Howard Bashman "Senators Wary of Bush's Wiretap Proposal": The Associated Press provides a report that begins, "Citing FBI abuses and the attorney general's troubles, senators peppered top Justice and intelligence officials Tuesday with skeptical questions about their proposal to revise the rules for spying on Americans." Posted at 08:30 PM by Howard Bashman "The Right To Remain Silent: Silence is about the only right the Guantanamo prisoners have left." Dahlia Lithwick has this jurisprudence essay online at Slate. Posted at 08:27 PM by Howard Bashman "Court Refuses to Block Detainee Transfer": The Associated Press provides a report that begins, "The Supreme Court refused to stop the Bush administration Tuesday from transferring a Guantanamo Bay detainee to his home country of Libya. Lawyers for the man argued he faces torture at the hands of the Libyan government if sent there." And at "SCOTUSblog," Lyle Denniston has a post titled "Court allows detainee transfer to Libya." "Court upholds Va. life insurance law; Affirms ruling against company specializing in viatical settlements": This article appears today in The Richmond Times-Dispatch. And The Associated Press reports that "Law on sale of dying patients' insurance policies affirmed." You can access yesterday's Fourth Circuit ruling at this link. "Missouri Supreme Court upholds parental lawsuits for abortions": The Associated Press provides a report that begins, "The Missouri Supreme Court today upheld a law letting parents sue people who help their teenage daughters get abortions without their consent." My earlier coverage appears in the post immediately below. Supreme Court of Missouri rejects challenge to the lawfulness of a Missouri law that creates a civil cause of action against any person who assists a minor in obtaining an abortion without parental consent or judicial bypass of the consent requirement: Although Planned Parenthood is the nominal loser of today's ruling of Missouri's highest court, to avoid striking down the law under the First Amendment the court construed the law to exclude from its coverage speech or expressive conduct. Thus, under today's ruling, Planned Parenthood and similar groups will be able to provide information and counseling to minors about how to obtain an abortion without parental consent or judicial bypass and not run afoul of the law. Posted at 02:42 PM by Howard Bashman "Court Rebuffs McDermott in Phone Case": The Associated Press provides this report. My earlier coverage of today's en banc D.C. Circuit ruling can be accessed here. "Court Strikes Law Barring Sale of Drug Data": The New York Times today contains an article that begins, "A federal judge ruled yesterday that the pharmaceutical industry could continue to use computerized data showing which doctors are prescribing what drugs. Judge Paul Barbadoro of United States District Court struck down a New Hampshire law that prohibited the purchase and resale of the data for use by the drug makers. Judge Barbadoro, ruling in Concord, N.H., said that the law violated the First Amendment by restricting commercial speech." The Associated Press reports that "N.H. Prescription Law Struck Down." And Reuters reports that "US court overturns New Hampshire prescription drug law." I have posted at this link yesterday's ruling of the U.S. District Court for the District of New Hampshire. "Above It All: A deposition can be an ugly war; Sometimes judges have to get down in the trenches." Law Professor Steven Lubet has this essay in the May 2007 issue of The American Lawyer. My earlier coverage of the Seventh Circuit ruling discussed in the essay can be accessed here. A somewhat related post appears here today at "Above the Law." "Supreme Court to Patent Appeals Court: Drop Dead." Roger Parloff of Fortune magazine has this post today at his "Legal Pad" blog. Posted at 11:10 AM by Howard Bashman En banc D.C. Circuit issues its ruling in Boehner v. McDermott: The ruling can be accessed online at this link. The lead majority opinion begins, "Both parties to this case are members of the United States House of Representatives. John A. Boehner, the plaintiff, represents Ohio's Eighth District. James A. McDermott, the defendant, represents Washington's Seventh District. The complaint alleged that Representative McDermott violated 18 U.S.C. sec. 2511(1)(c) when he disclosed a tape recording of an illegally intercepted conversation in which Representative Boehner participated." The lead majority opinion concludes, "When Representative McDermott became a member of the Ethics Committee, he voluntarily accepted a duty of confidentiality that covered his receipt and handling of the Martins' illegal recording. He therefore had no First Amendment right to disclose the tape to the media." The D.C. Circuit's ruling was 5-4, with the dissent constituting the majority(!) on one of the issues presented, thanks to Circuit Judge Thomas B. Griffith, who had the pleasure of providing the dispositive fifth vote on the issues before the court. "Donald Lay, chief Appeals Court judge and champion of individual civil rights": The Minneapolis Star Tribune today contains an obituary that begins, "Donald P. Lay, former chief judge of the U.S. Eighth Circuit Court of Appeals and a champion of individual civil rights, died Sunday in North Oaks. Lay, who was appointed to the Eighth Circuit by President Lyndon Johnson in 1966, was 80. When Lay was appointed at age 39, the White House said he was the second-youngest ever named to the court." And this death notice appears today in The St. Paul Pioneer Press. See also this earlier post. "Noise law enforced fairly, court rules; Street preachers claimed they were discriminated against": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "A federal appeals court upheld San Francisco's enforcement of an anti-noise ordinance against street preachers Monday, saying they had been cited for the volume of their amplified messages, not their content." My earlier coverage of yesterday's Ninth Circuit ruling can be accessed here. "Garlic festival dress code upheld; Court rejects club's free-speech argument": Howard Mintz has this article today in The San Jose Mercury News. And today in The San Francisco Chronicle, Bob Egelko reports that "Biker club's insignia ruled not free speech." My earlier coverage of yesterday's Ninth Circuit ruling can be accessed here. "Justices to rule on world court's reach; A ruling in the Hague pits Texas against President Bush, Mexico and a Houston murderer": David G. Savage has this article today in The Los Angeles Times. The Houston Chronicle reports today that "Ertman-Pena killer will get case heard; Mexican citizen on death row for '93 rape-murders." The Dallas Morning News reports that "High court to hear Texas case on presidential power; Bush ordered review of Mexican's death sentence." The Fort Worth Star-Telegram reports that "Supreme Court to hear Mexican's case." And The Washington Times reports that "Court to hear challenge of Bush's order to Texas." "High court tosses case of Texas death row fixture; Dallas man's appeal sent back to lower court": Today in The Houston Chronicle, Patty Reinert has an article that begins, "The U.S. Supreme Court on Monday sent back to a lower court the appeal of the inmate who has been on Texas' death row the longest, citing faulty jury instructions that led the court to reject the death sentences of three other Texas killers last week." Posted at 08:00 AM by Howard Bashman "Justices Again Refuse Guantanamo Bay Cases": The Washington Post contains this article today. Posted at 07:58 AM by Howard Bashman "Supreme Court won't decide Va.-Vermont lesbian custody fight": This article appears today in The Virginian-Pilot. The Rutland Herald reports today that "High court won't hear custody case." And The Seattle Post-Intelligencer reports today that "High court again declines to step in on gay custody battle." "Patent protections tempered by Supreme Court rulings": Jim Puzzanghera has this article today in The Los Angeles Times. And today in USA Today, Joan Biskupic reports that "Ruling toughens patent process; Second decision gives software makers shelter." "Video verdict: Supreme Court OKs deadly force to end high-speed police chases; Justices ruled an officer was justified in ramming a Georgia teen's car -- after studying a tape of the incident." David G. Savage has this article today in The Los Angeles Times. Today in USA Today, Joan Biskupic reports that "Court limits police liability in car chases; Dashboard video of fleeing vehicle sways justices." And The Atlanta Journal-Constitution reports that "High court vindicates Georgia officer in chase." "Feinstein seeks to close Guantanamo; The senator's proposal comes on the day the justices decline to hear detainees' appeal on the legality of military trials there": This article appears today in The Los Angeles Times. Posted at 07:40 AM by Howard Bashman "New Justices, New Rules: The Supreme Court Upholds the Federal Partial-Birth Abortion Ban Act of 2003." Joanna Grossman and Linda McClain have this essay online today at FindLaw. Posted at 07:32 AM by Howard Bashman Monday, April 30, 2007 No surprise -- The Seventh Circuit knows its Easterbrook brothers: In this post from April 2003, I noted a law.com news blurb that referred to "Judge Gregg Easterbrook" of the "6th U.S. Circuit Court of Appeals." In footnote one (on page 5) of this opinion issued today, avid sports fan and Seventh CIrcuit Judge Terence T. Evans demonstrates that he certainly knows his Easterbrook brothers. The footnote concludes that "[f]rom now on, a second-guesser should be called a 'Tuesday Morning Quarterback.'" "High-Speed Case Crashes in High Court; Majority: 11th Circuit shouldn't have relied on plaintiff's version of events belied by videotape." law.com provides this report. Posted at 11:52 PM by Howard Bashman "Video Persuades Justices to Back Police Use of Force to End Chase": Robert Barnes will have this article Tuesday in The Washington Post. Also, in tomorrow's newspaper Robert Barnes and Alan Sipress will have an article headlined "Rulings Weaken Patents' Power; High Court Decides On Two Key Cases." "UVa law students' case picked by Supreme Court": The Daily Progress of Charlottesville, Virginia today contains an article that begins, "A group of University of Virginia law students is venturing into an arena few legal professionals experience as it prepares arguments for a Supreme Court case." Posted at 11:44 PM by Howard Bashman Linda Greenhouse is reporting: In Tuesday's edition of The New York Times, she will have articles headlined "Court Backs Police in Chase That Hurt Driver"; "High Court Puts Limits on Patents"; and "Supreme Court to Hear Appeal of Mexican Death Row Inmate." Posted at 11:37 PM by Howard Bashman Why was Ninth Circuit Judge Alex Kozinski at Santa Clara University School of Law in October 2006 to bash blogs? As revealed here, he was visiting that law school in his capacity as the Heafey Center Distinguished Jurist for 2006. However, at "CU bLAWg," they prefer the pre-anti-blog Kozinski from his appearance on "The Dating Game" (scroll down). That was some kiss hello! "High court: police can use violent means to end high-speed chases; The Supreme Court's 8-to-1 decision involved a Georgia teenager, who sued a police deputy who rammed the teen's speeding car, causing serious physical damage." Warren Richey will have this article Tuesday in The Christian Science Monitor. Posted at 10:03 PM by Howard Bashman "Supreme Court backs police in high-speed chases": Michael Doyle of McClatchy Newspapers provides this report. Posted at 09:22 PM by Howard Bashman "Supreme Court to weigh fate of Houston teens' killer": The Houston Chronicle provides a news update that begins, "The U.S. Supreme Court agreed today to consider whether one of the six killers of Houston teen-agers Jennifer Ertman and Elizabeth Pena should escape execution because he was denied a chance to get legal assistance from the Mexican consulate. As requested by the Bush administration, the high court will hear arguments in the fall on the case of Jose Medellin, a Mexican citizen sent to Texas death row in the notorious 1993 rape-murder case." Posted at 08:30 PM by Howard Bashman "High Court Sides With Police on Car Chase Injuries": This audio segment (RealPlayer required) appeared this evening's broadcast of NPR's "All Things Considered." Posted at 08:24 PM by Howard Bashman "'Issue Ads' And Common Sense": Stuart Taylor Jr. has this essay in today's issue of National Journal. Posted at 08:17 PM by Howard Bashman "High court hands tech firms patent victory": Patti Waldmeir of Financial Times provides this report. Posted at 05:33 PM by Howard Bashman "Supreme Court Adopts New Standard on Patent Litigation": law.com's Tony Mauro provides this news update. Posted at 05:04 PM by Howard Bashman In memory of Senior Eighth Circuit Judge Donald P. Lay: The Eighth Circuit confirms that Judge Lay passed away peacefully at his home on Sunday, April 29, 2007. I am further told that, in lieu of flowers, donations in his memory may be made to the Muscular Dystrophy Association or the Boy Scouts of America. Posted at 05:00 PM by Howard Bashman Available online from Lyle Denniston of "SCOTUSblog": Lyle has posts titled "Commentary: Do detainees retain any rights?" and "Analysis: A flat new rule on high-speed chases." Posted at 03:58 PM by Howard Bashman "Supreme Court declines to enter fray on detainee trials; Monday's action helps to clear the way for the next military trials against terror suspects at Guantanamo Bay": Warren Richey will have this article Tuesday in The Christian Science Monitor. Posted at 03:53 PM by Howard Bashman "'Marketplace' Report: Microsoft Patent Dispute." This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day." Posted at 03:40 PM by Howard Bashman "Romney Assails McCain-Feingold Law": The Associated Press provides this report. Posted at 03:35 PM by Howard Bashman Ninth Circuit rejects challenge to Gilroy (Calif.) Garlic Festival's prohibition against the wearing of gang colors or other demonstrative insignia, including motorcycle club insignia: The only thing more fearsome than a gang member decked out in demonstrative insignia is a gang member decked out in demonstrative insignia who reeks of garlic. You can access today's Ninth Circuit ruling at this link. Posted at 03:11 PM by Howard Bashman Christian evangelists who operate religious outreach with the use of amplified sound in the streets of San Francisco lose their constitutional challenge to San Francisco's enforcement of its noise abatement ordinance: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this lengthy decision today. Posted at 03:05 PM by Howard Bashman Ninth Circuit rejects constitutional challenge to California's vexatious litigant statute: You can access today's ruling at this link. The challenger to the law's constitutionality appeared pro se on appeal. Posted at 03:00 PM by Howard Bashman Substantive due process "state-created danger" claim cannot succeed where, in reliance on a government physician's bad advice to ignore warning signs of a heart attack, the patient sustains serious injury: A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued this ruling today. Posted at 02:55 PM by Howard Bashman "Justices OK deadly force in some police pursuits": David G. Savage of The Los Angeles Times provides this news update. Robert Barnes of The Washington Post provides a news headlined "Supreme Court Sides With Police in Chase Case." And Bill Mears of CNN.com provides a report headlined "Court: High-speed chase suspects can't sue police." "Online Video Clips: Not Just for Porn Anymore." David Lat has this post at "Above the Law." At "The Volokh Conspiracy," Orin Kerr has this related post. At "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "Let's Go to the Videotape." At "The Indiana Law Blog," Marcia Oddi offers these thoughts. And at the "New York Personal Injury Law Blog," you can access a post titled "US Supreme Court Goes Multimedia -- Video is Part of Decision." My earlier coverage appears here. YouTube, meet SCOTUSTube. Reuters is reporting: James Vicini has articles headlined "Court rules police can't be sued in high-speed chase" and "U.S. court to decide case of Mexican on death row." Also available online are articles headlined "Court won't hear appeal by Guantanamo prisoners"; "US high court loosens patent 'obviousness' test"; "U.S. top court rules for Microsoft in patent case"; "Court won't review same-sex union custody case"; and "Top court won't hear power plant pollution rule." Greg Stohr of Bloomberg News is reporting: He has articles headlined "Technology Companies Win as Supreme Court Limits Patent Rights" and "Death Sentences on Mexicans Draw Scrutiny by U.S. Supreme Court." Posted at 02:20 PM by Howard Bashman U.S. Supreme Court sends latest round of impending federal procedural rule changes to Congress: In addition to issuing an Order List and announcing rulings in five argued cases, today the Supreme Court of the United States also sent to the U.S. Congress the amendments to the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure that will take effect on December 1, 2007 absent any intervening disapproval from Congress. The lone change to the Federal Rules of Appellate Procedure due to take effect this December involves the subject of privacy protection. "Senators Leery of Another Supreme Court Fight": Roll Call today contains an article (subscription required) that begins, "Just over a year after confirming President Bush's second nominee to the Supreme Court, many Senators say they are holding their breath that they won't have to entertain another high court vacancy this Congress, anticipating a battle royal that likely would bring the narrowly divided chamber to a partisan standstill." Posted at 12:54 PM by Howard Bashman "Court Refuses Child Visitation Dispute": The Associated Press provides a report that begins, "The Supreme Court on Monday declined to get involved in a dispute between two former lesbian lovers over visitation rights involving a 4-year-old child." Posted at 12:47 PM by Howard Bashman Ninth Circuit Judge Alex Kozinski versus blogs linkwrap: On Friday, I had a post titled "Ninth Circuit Judge Alex Kozinski's take-down of blogs is itself taken down." More recently, the audio has appeared back online, available here (most relevant audio excerpt) and here (full audio segment; click "listen" at this link's destination to launch audio). The full audio segment also includes Judge Kozinski's interesting explanation of his discovery that David Lat was probably the author of the blog "Underneath Their Robes" before Lat's official unmasking occurred in an article that Jeffrey Toobin published in The New Yorker. A formatted PDF version of the Google cache transcript (which is less than 100% accurate) of that full audio segment can be accessed here. A formatted transcript of Judge Kozinski's complete talk, consisting of a total of four audio segments, is forthcoming. Yesterday, I collected links to all my related earlier coverage in a single post that you can access here. All that remains to be determined is why the audio and transcript of Judge Kozinski's October 2006 talk to Law Professor Eric Goldman's cyberlaw class was removed from the web site of the High Tech Law Institute at Santa Clara Law School once bloggers other than Professor Goldman (see his initial post here) began to link to it and discuss it. I have emailed Professor Goldman on Friday to ask why the material was taken off-line, but I thus far have received no answer. In products liability case, federal district court properly subjected opinions of generalist "expert for hire" to greater scrutiny: According to a ruling that a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued today, "This Court has recognized for some time that expert testimony prepared solely for purposes of litigation, as opposed to testimony flowing naturally from an expert's line of scientific research or technical work, should be viewed with some caution." The ruling affirms the district court's exclusion of the expert's proposed testimony and the entry of summary judgment in the defendant's favor that necessarily followed therefrom. Posted at 11:44 AM by Howard Bashman "FCC Holds Hearing on Media Ownership Rules": This audio segment (RealPlayer required) appeared on today's broadcast of NPR's "Morning Edition." Posted at 11:33 AM by Howard Bashman Here's a first -- A U.S. Supreme Court decision issued today has its own accompanying video: Talk about multimedia rulings! The Court's opinion today in Scott v. Harris, No. 05-1631 -- a dispute about the lawfulness of a high-speed police chase captured on video -- appears online at the Supreme Court's web site with this 91.7 MB RealPlayer video file. No word yet from the Court on whether the volume of U.S. Reports in which this decision will appear will include its own embedded video player. Posted at 11:19 AM by Howard Bashman Majority opinion by Chief Justice John G. Roberts, Jr.; dissenting opinion by Justice Samuel A. Alito, Jr.: See today's ruling in United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, No. 05-1345. Proving once again that there's nothing like a dormant Commerce Clause solid waste disposal dispute to fracture traditional alliances on the Court. Posted at 11:14 AM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "Supreme Court Won't Hear Guantanamo Case"; "Court Takes Death Penalty Case"; "Supreme Court Backs Police in Chase Case"; "Court Favors Microsft in Patent Fight"; "Court Decides Trash Fight"; and "Court Adheres to 2003 Clean Air Rules." Posted at 10:17 AM by Howard Bashman "Court rules on two patent cases, and on high-speed chase": Lyle Denniston has this post at "SCOTUSblog." The Court decided a total of five argued cases today. In Microsoft Corp. v. AT&T Corp., No. 05-1056, you can access the opinion of the Court here and the oral argument transcript here. In KSR International Co. v. Teleflex, Inc., No. 04-1350, you can access the opinion of the Court here and the oral argument transcript here. In Scott v. Harris, No. 05-1631 -- an excessive force, high-speed police chase case from Georgia -- you can access the opinion of the Court here and the oral argument transcript here. In EC Term of Years Trust v. United States, No. 05-1541, you can access the opinion of the Court here and the oral argument transcript here. And in United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, No. 05-1345, you can access the opinion of the Court here and the oral argument transcript here. "Court turns down Hamdan appeal, will hear Medellin": Lyle Denniston has this post at "SCOTUSblog." My detailed coverage of the November 2006 ruling of the Texas Court of Criminal Appeals in Ex Parte Jose Ernesto Medellin can be accessed at this link. You can access today's U.S. Supreme Court Order List at this link. "Free Speech and Defamation: When Prior Restraint Is the Right Decision." Today's installment of my "On Appeal" essay for law.com can be accessed at this link. Posted at 10:02 AM by Howard Bashman "Equality vs. quality in schools": Today in The Seattle Times, columnist Jerry Large has an op-ed that begins, "The U.S. Supreme Court is expected to rule this week on a case involving Seattle schools, and I think the odds favor a ruling that race can't be taken into account to address the impact of race." Although it is possible that the U.S. Supreme Court could issue its ruling today, if the decision does not issue today then the next possible date for a ruling would be Monday, May 14, 2007. The Court's calendar for this Term can be viewed at this link. "Divorced parents clash over 12-year-old son's circumcision; Three-year fight - The father, a convert to Judaism, sees it as a matter of religious observance." This article appeared Friday in The Oregonian. Posted at 08:45 AM by Howard Bashman "Bombing suspect's hometown shocked; Former neighbors describe Paul Ross Evans as pleasant and polite": The Austin American-Statesman today contains an article that begins, "It was the talk of the barber shop where Lee Tillman got his hair trimmed for a church banquet Saturday: A man who had lived for years in this small East Texas city had been arrested by the FBI, accused of putting a bomb outside an Austin clinic that performs abortions." Posted at 08:44 AM by Howard Bashman "Students Protest Attorney General": The Harvard Crimson today contains an article that begins, "As Attorney General Alberto Gonzales and his classmates posed for a photo at their Harvard Law School reunion Saturday, an odd figure stood behind the photographer. A group of law students, one of whom wore an orange jumpsuit and a black hood, stood at the bottom of the steps of Langdell Hall and shouted to the other alumni to say 'torture' or 'resign' instead of 'cheese.'" And in somewhat related coverage, The Washington Post today contains an article headlined "The Investigated Investigator: Leader of High-Profile Probes Is Under Scrutiny Himself." "Two federal judges hold key to California prison reform; Two veteran jurists may find themselves reluctantly stepping in where there is a political vacuum to address inmate overcrowding": This article appears today in The Los Angeles Times. Posted at 08:27 AM by Howard Bashman "Judge in terror case: Indictment 'very light on facts'; Critics say vague charges have replaced the 'dirty bomb' accusation against Jose Padilla." The St. Petersburg Times contains this article today. Posted at 08:25 AM by Howard Bashman "2,000 stories of regret swayed Court; Testimonials from Florida women figure in a Supreme Court ruling regarding abortion": This article appears today in The St. Petersburg Times. Posted at 08:20 AM by Howard Bashman "Guantanamo Lawyers Predict More Suicides": The Associated Press provides a report that begins, "Lawyers envision more suicides and despair at Guantanamo Bay if the U.S. Justice Department succeeds in severely restricting access to detainees by defense attorneys, virtually the only contact inmates have with the outside world." Posted at 08:15 AM by Howard Bashman "Did Justices' Catholicism Play Part in Abortion Ruling?" Robert Barnes has this article today in The Washington Post. And today in The Chicago Tribune, Law Professor Geoffrey R. Stone has an op-ed entitled "Our faith-based justices." "Petition for rehearing in US v. Lett": This post, providing online access to the petition, appears at the "Sentencing Law and Policy" blog. My earlier coverage of the recent Eleventh Circuit ruling in this case can be accessed here. "Georgia's Shame": The New York Times today contains an editorial that begins, "Every day that young Genarlow Wilson remains in prison for consensual sexual activity is a further indictment against the prosecutors, lawmakers and judges of the Georgia legal system." Posted at 07:48 AM by Howard Bashman "As Blogs Proliferate, a Gadfly With Accreditation at the U.N." This article appears today in The New York Times. Posted at 07:45 AM by Howard Bashman "When Talk Isn't Cheap: Campaign finance regulators say speech isn't free--it's a form of 'contribution.'" John Fund has this essay online today at OpinionJournal. Posted at 07:44 AM by Howard Bashman "Winner Takes Some: The Supreme Court's shift on abortion is not what you think." Benjamin Wittes has this essay online today at The New Republic. Posted at 06:44 AM by Howard Bashman Sunday, April 29, 2007 "Sexual Threats Quiet Some Female Bloggers": This front page article will appear Monday in The Washington Post. Posted at 11:18 PM by Howard Bashman "Cases Keep Flowing in, but the Jury Pool Is Idle": That's the headline of Adam Liptak's "Sidebar" column (TimesSelect temporary pass-through link) that will appear Monday in The New York Times. Posted at 11:10 PM by Howard Bashman "Civil-rights icon Hill nears 100; Richmond native held crucial role in building Brown v. Board case": This article appears today in The Richmond Times-Dispatch. Posted at 10:12 PM by Howard Bashman "The Temptation of Justice Thomas: In his latest anti-abortion opinion, Clarence Thomas hints at a moment of doubt." Evan P. Schultz will have this essay in the April 30, 2007 issue of Legal Times. And in the April 30, 2007 issue of The National Law Journal, American Bar Association President Karen J. Mathis has an essay entitled "Better Judicial Pay: Lawyers must take the lead." Law Professor David Fontana has an essay entitled "Appointing prosecutors:Make it less political."
And in other coverage of this year's Pa. Supreme Court elections, yesterday's newspaper contained a fund raising-related article headlined "Judicial hopefuls treading the line." Today's large crowd, which included my son and me, nearly witnessed a historic pitching performance, as Phillies starter Jamie Moyer took a no-hitter two outs deep into the top of the seventh inning.
The typical no-hitter features at least one or two tremendous defensive plays, and today's game had at least two to offer. Phillies third baseman Abraham Nunez made an amazing defensive play for the second out in the third inning, when the Marlins catcher hit a line drive that glanced off the top of Nunez's glove when he tried to jump as high as possible to make the catch. The ball dribbled just behind Nunez, who turned around, picked it up, and threw out the catcher at first base by a stride on a short-hop that first baseman Ryan Howard easily handled. Moyer ended his chance at a perfect game by walking the first batter in the fourth inning. Hanley Ramirez, who drew the walk, was erased when second baseman Dan Uggla grounded into a fielder's choice. Then third baseman Miguel Cabrera hit a shot into the left field power alley that appeared to be heading for a double, but somehow Phillies left fielder Jayson Werth made an amazing snow-cone catch at the warning track. Uggla at that point was steps away from third base and was resigned to his fate, so Werth upon turning around threw the ball back to shortstop Jimmy Rollins, who then lobbed the ball to first baseman Ryan Howard to record the double play at first base.
Thanks to that double play to end the fourth inning, Moyer had faced the minimum number of batters when Cabrera returned to the plate as the third batter in the top of the seventh inning. On a 3-1 count, he lined the ball into the left field corner for a double. The no-hitter was no more. The very next batter, however, lined out to second base, ending the inning.
Moyer was the lead-off batter in the bottom of the seventh inning, and he hit a line drive of his own into the left field corner for a double, barely reaching second base before the tag. It was his second hit of the game, as he led off the third inning with a pop fly single that froze the left fielder in his tracks. In the bottom of the seventh, Moyer reached third base on a wild pitch, but the next three batters for the Phillies recorded outs that were not productive enough to score him from third.
Perhaps running the bases tired Moyer, who had already thrown 86 pitches to that point and is nearly two years older than me. He walked the first Marlins batter in the top of the eighth inning and then, after recording a strikeout, gave up a single to the next batter. With runners at first and second, one out, and Moyer having thrown 100 pitches, his day was over. New-found set-up man Brett Myers came in to record two successive strikeouts, and the eighth inning ended without the Marlins putting any runs on the board.
In the bottom of the eighth inning, a double from pinch hitter Greg Dobbs with the bases loaded brought in three more runs for the Phillies, making the score 6-0, and thereby rendering unnecessary for today at least the services of the Phillies recently unreliable closer, Tom "Flash" Gordon. After giving up a meaningless run to the Marlins in the top of the ninth, the game ended with the final score 6-1. Tthe large crowd left happy, whether or not they were carrying a bobblehead Phanatic or enjoyed today's King Tut celebration.
Although eleven wins thus far for the month of April will not enable the Phillies to avoid a losing record for April 2007, the past two years the Phillies only achieved ten wins in April. So, this month's record does represent at least a slight improvement. You can access the box score of today's game at this link, while wraps are available here and here. A bit later in this very same audio segment, Judge Kozinski explains how he determined that David Lat was probably the author of the blog "Underneath Their Robes" before Lat's official unmasking occurred in an article that Jeffrey Toobin published in The New Yorker.
My earlier, related posts can be accessed via their respective titles:
"Ninth Circuit Judge Alex Kozinski's take-down of blogs is itself taken down";
"Welcome to day two of 'Ninth Circuit Judge Alex Kozinski's take-down of blogs is itself taken down' ";
"Ninth Circuit Judge Alex Kozinski talks about blogs"; and
"'Judge Kozinski Talks About Cyberlaw.'" And The Washington Post today contains a front page article headlined "'I Abhor Injustice,' Alleged Madam Says." No word yet on whether a certain Pennsylvania Supreme Court Justice will also boycott the webcast of the event. The portion of the audio quoted in my post titled "Don't hate the player" begins moments after the 14-minute mark of the recording. And the transcript remains available here via Google cache.
My other earlier, related posts can be accessed here, here, here, and here.
For those planning to attend the law blogging panel at the Seventh Circuit's Judicial Conference in Milwaukee on Monday, May 7, 2007, I'm told that Judge Kozinski's comments about blogs may be among the subjects on the agenda for discussion. And The Oregonian today contains an article headlined "Court of opinion weighs U.S. justice's catch; A fish tale - Antonin Scalia released his salmon as required but not before some frowned-upon photos." And in the May 14, 2007 issue of The Nation, Katha Pollitt will have an essay entitled "Regrets Only" that begins, "So now you know. It really does matter who's President and which party controls Congress. A Democratic-controlled Congress would never have passed the Partial-Birth Abortion Act, which banned intact dilation and extraction abortions and, in flagrant violation of Roe v. Wade, lacked an exception to preserve the health of the woman." And Reuters provides a report headlined "U.S. can't alter 'dolphin-safe' tuna rules: court."
My earlier coverage of yesterday's Ninth Circuit ruling appears at this link. And Emily Bazelon has an essay entitled "The Secret Weapon of 2008: Felons are getting the vote back--and Republicans aren't stopping them." The News & Observer of Raleigh, North Carolina today contains articles headlined "Report depicts dazed accuser; Mangum was not credible, AG found"; "Team party turned sour early"; and "The lineups that weren't?; City leader says photo arrays didn't qualify; report coming."
The Herald-Sun of Durham, North Carolina reports that "Attorney general explains dismissal."
The New York Times reports that "'Credibility Issues' Undid Duke Case, Report Says."
The Washington Times reports that "Report calls Duke rape charges unsupported."
And The Associated Press reports that "Duke Lacrosse Case Report Released."
You can access the North Carolina Attorney General's Summary of Conclusions report at this link. An article reports that "11th Circuit Weighs School District's Liability for Professional Reference; Federal appeals court examines whether school can be sued for not warning another school about teacher's alleged behavior."
In other news, "N.J. Court Says Sports Arenas' Duty of Care May Be Higher During Warm-Ups."
Jason McLure reports that "Gonzales Stays but Faces More Questions."
And the new installment of my weekly "On Appeal" column is headlined "Free Speech and Defamation: When Prior Restraint Is the Right Decision." I also have the 32.1 MB mp3 audio podcast file saved, and I'd like to hear from my readers regarding where's the best place for me to upload the audio for free to allow my readership to access it without any bandwidth restrictions on the downloading side.
Yesterday, I sent the following email to Law Professor Eric Goldman, who was responsible for having the audio and transcript of Judge Kozinski's October 2006 talk to Professor Goldman's cyberlaw class posted online at the web site of the High Tech Law Institute at Santa Clara Law School: Why have the audio and transcript links featured in this blog post of yours
[http://blog.ericgoldman.org/archives/2007/04/kozinski_interv.htm]
been taken down, either by you or your law school?
I have the mp3 audio file of the first audio segment of the podcast in which I am mentioned, and I am planning to host it online myself unless I hear some persuasive objection to the contrary.
Best regards,
HJBashman Sooner or later, I'm sure we will get to the bottom of why Professor Goldman and/or the High Tech Law Institute at Santa Clara Law School have taken down the audio and transcript of Judge Kozinski's remarks, but the audio and transcript themselves will undoubtedly remain available through alternate sources such as this blog. And The Los Angeles Times provides a news update headlined "Duke rape accuser was 'impaired,' report finds."
You can access the North Carolina Attorney General's Summary of Conclusions report at this link. The Washington Post on Saturday will report that "CIA Recently Held Terror Suspect."
And The Los Angeles Times provides a news update headlined "Pentagon says it has custody of senior Al Qaeda figure; The Defense Department says he was captured and handed over to the CIA in late 2006 and has been providing critical information about Al Qaeda." And Saturday's edition of The Washington Post will report that "GOP Lawmaker Told of Plan to Fire U.S. Attorney." My earlier coverage of these rulings appears at this link. And Priscilla Smith, who presented oral argument on behalf of the physician in the U.S. Supreme Court in Gonzales v. Carhart, has a post titled "A Restrained View." Although the dissent from today's order is undoubtedly correct in opining that there's nothing that the parties can say in reaction to last week's SCOTUS ruling that would alter the outcome of the Second Circuit case at this point, it does appear that the Second Circuit is merely following its usual standard procedure in giving the parties a chance to comment before taking action. It is also worth noting that the author of today's order was the more reluctant of the two votes in favor of striking down the federal law when the Second Circuit issued its original decision in the case. The specific issue in the case is whether a federal district court has federal question jurisdiction over a petition to compel arbitration if the underlying dispute to be arbitrated itself states a federal question. Apparently four other federal appellate court's have answered "no," but the Fourth and Eleventh Circuits say "yes."
The specially concurring opinion concludes, "This important issue which has split the circuits merits more consideration than either this Court or the Supreme Court has given it." Fortunately, at least as of this moment, you can still download via this link the mp3 audio file in which Judge Kozinski spoke about "How Appealing." [Update: As of shortly after 3 p.m. eastern time, that direct mp3 download likewise no longer functions. Perhaps someone no longer wants this audio file to be readily available.] I've saved a copy of that audio file on my hard drive, allowing me to post it myself if the "Tech LawForum" web site hosted by the High Tech Law Institute at Santa Clara Law School now decides to remove direct access to the mp3 file as well.
The "Above the Law" post states, "Why is Kozinski picking on Bashman? How Appealing is the opposite of grandiloquent; it's essentially a just-the-facts clearinghouse for the day's news." At "Patterico's Pontifications," Patterico writes, "Let's hope Kozinski was just kidding. After all, Howard Bashman is the last guy you'd want to pick on for being flowery and self-indulgent -- and his site is tremendously useful. Either Judge Kozinski was kidding, or he just doesn't know what he's talking about here."
A judicial law clerk emails, "I'll echo what the California district court clerk said, but this time coming from the Eighth Circuit. There is only one website that has a shortcut on my desktop, and it's How Appealing. You're my morning newspaper for all things legal. Judge wonders how we get PDFs of Supreme Court opinions before they're posted on the Supreme Court website, and it's because of your speed. You certainly are 'the authority' for appellate happenings for this chambers."
And from a U.S. Courts email address in the Northern District of Georgia comes an email stating, "Am I the only one who read Judge Kozinski's comments about your blog as having been made very tongue-in-cheek. I interpreted his remarks as a back-hand compliment (since I know that you and he have traded quips over the years), but I see other people who seem to be up in arms over the judge's statement. I am curious to know how YOU interpreted his remarks."
Judge Kozinski and I supported opposite sides in the battle over whether to adopt Federal Rule of Appellate Procedure 32.1, which allows parties to cite to unpublished and non-precedential federal appellate court rulings. He was quite personally invested in efforts to defeat that rule, but ultimately the rule change was approved. He and I also disagree over whether the Ninth Circuit should be divided. But, the person who can best explain whether and, if so, why Judge Kozinski doesn't like this blog (or me or my opinions on issues) isn't me.
Of course, to the extent that I do publicly express opinions on controversial issues (which isn't often, and typically those issues are controversial only among fellow law geeks), and some people think less of me as a result, that's a risk that I've knowingly and willingly taken. So, there are certainly no regrets here.
Update: And this just in from a Chief Judge who's emailing over the BlackBerry: "Just a note to tell you that Kozinski is SO off base, but you already knew that. Better than that, however, his comments were just gigged by Dahlia Lithwick, of Slate -- who is speaking on Blogging at the Annual Conference of Chief Judges. You have a lot of fans in here." You can access yesterday's ruling of the Supreme Court of California at this link. And today in The Boston Globe, columnist Ellen Goodman has an op-ed entitled "Regulating women." Gannett News Service reports that "State's highest court reverses ruling on Internet porn."
And The Associated Press provides a report headlined "Court: No need for images to convict on anti-pedophile law."
You can access yesterday's ruling of the New York State Court of Appeals -- that State's highest court -- at this link.
For those interested in this subject, the October 9, 2006 installment of my weekly "On Appeal" column for law.com was headlined "Text This: Words Alone Can Violate Federal Obscenity Laws." And The Times-Union of Albany, New York reports today that "Raises rise to top of agenda; State senators back measure that would increase pay for judges, and for themselves." And The Telegraph Herald of Dubuque, Iowa contains an article headlined "Neighbor: 'The Bishop' bomb suspect a 'super cool' guy; Some who know him say Tomkins was a good family man." And The New York Times reports today that "New Hampshire Senate Votes to Allow Same-Sex Civil Unions." Today in The Los Angeles Times, Maura Dolan reports that "State supreme court moves to limit speech; State justices for the first time rule that defendants can be barred from making defamatory statements in the future."
And in The San Francisco Chronicle, Bob Egelko reports that "State's top court says statements ruled slanderous can't be repeated."
My earlier coverage of yesterday's ruling of the Supreme Court of California can be accessed here. And in today's issue of USA Today, Raul Reyes has an op-ed entitled "Why are Gonzales' amigos so silent?" And The New York Times today contains an editorial entitled "After the Lawyers" that begins, "It can be hard to tell whom the Bush administration considers more of an enemy at the Guantanamo Bay detention camp: the prisoners or the lawyers." And in other news, "N.Y. High Court: Davis Polk Didn't Commit Malpractice, Is Entitled to Fee." You can access at this link today's ruling of the New York State Court of Appeals. My earlier coverage of today's ruling of the Supreme Court of California can be accessed here. And at "SCOTUSblog," Lyle Denniston has a post titled "Chief Justice denies detainees' pleas."
You can access at this link today's Opinion in Chambers of Chief Justice John G. Roberts, Jr. in his capacity as Circuit Justice for the U.S. Court of Appeals for the D.C. Circuit. At "The Volokh Conspiracy," Orin Kerr has a post titled "Judge Kozinski and the Blogosphere."
At law.com's "Legal Blog Watch," Carolyn Elefant has a post titled "Justice Kozinski Gives a 'Shout-Out' to Howard Bashman."
And at "Begging The Question," Milbarge has a post that begins, "Unlike Judge Kozinski, I do check Howard Bashman's site before I eat breakfast every day." And so does Law Professor Rick Hasen.
A law clerk who works at a California-based federal district court emails, "If that's all that Judge Kozinski said about your blog, I think he missed the point of what you do. Although I enjoy your light introductions to a topic or event, I read your blog to be timely introduced to events just occurring in the legal world, especially judicial decisions. Your links to just-issued decisions are invaluable, including those authored by Judge Kozinski. More than once, you have identified a case or other legal happening directly relevant to something on which I am working. Don't be discouraged."
And a well-known criminal defense attorney based in Atlanta emails, "That quote is hilarious. Why don�t you provide more insight into your view of his lack of pre-occupation with your thoughts? I want to know how long at a time can you go without thinking of him?" Later, the article notes that "Justice Anthony Kennedy, by contrast, is having the kind of year most judges only dream about.... Kennedy is a robust 31-1 in signed opinions issued since the court began its current term in October. He is 12-0 in 5-4 cases, the only justice in that narrow majority each time in cases concerning abortion, the death penalty and global warming." And The Seattle Post-Intelligencer provides a news update headlined "Court: Rights of anti-war protesters in Westlake were not violated."
Today's ruling in Sanders v. City of Seattle consists of a majority opinion, a concurring opinion, and two dissenting opinions (here and here).
In coverage of a separate ruling that Washington State's highest court issued today, The Associated Press provides a report headlined "WA court: Radio talk show hosts exempt from campaign finance laws." Back in June 2006, just after the case had been argued, The Seattle Times published an article headlined "Talk-radio case heard by state high court."
Today's ruling in San Juan County v. No New Gas Tax consists of a majority opinion and a concurring opinion.
At "The Volokh Conspiracy," Eugene Volokh has written several posts about this decision, including one titled "What About Bloggers Arguing for Ballot Measures in Washington State?"
In the interest of full disclosure, yesterday I had the pleasure of meeting Washington State Supreme Court Justice Richard B. Sanders, who was in attendance at the Heritage Foundation event in which I participated yesterday. The paragraph of the majority opinion from which the title of this post is excerpted states, in full: Two justices dissented, and they reasoned that the injunction constituted an impermissible prior restraint on speech and that the plaintiff had failed to demonstrate that damages were insufficient to compensate the plaintiff for any harm that resulted from further repetition of the defamation.
This appears to be a very interesting decision. My preview of today's ruling, which I posted this morning, can be accessed here. Back on January 29, 2007, Maura Dolan of The Los Angeles Times reported on the case in an article headlined "Woman's crusade against bar spawns free speech case; Anne Lemen just wants to say what she pleases about a Balboa Island restaurant and bar; A court has forbidden her to, and that sets up a dispute over prior restraint."
The ruling under review from California's Court of Appeal for the Fourth District can be accessed here.
Finally, Peter Blumberg of the Daily Journal of California discussed the case in an essay entitled "Citation Rules Mean Equal Treatment Isn't Guaranteed." USA Today reports today that "Man accused of threatening companies with bombs."
The Des Moines Register reports that "Feds arrest Iowan for mail bombs; John Tompkins of Dubuque allegedly sent threats as the 'Bishop.'"
And The Telegraph Herald of Dubuque reports that "Dubuque man arrested in pipe-bomb case." In today's issue of USA Today, Joan Biskupic reports that "Justices look set to allow 'issue ads' naming candidates."
In The Boston Globe, Charlie Savage reports that "Campaign finance law challenged; Justices review McCain-Feingold."
In The New York Sun, Joseph Goldstein reports that "Some Justices Appear Ready To Rule Against McCain-Feingold."
And The Milwaukee Journal Sentinel reports that "Campaign finance law returns to court; Abortion foes tell U.S. justices that speech was curbed." And today in The Hartford Courant, a letter to the editor appears under the heading "Judge Should Be Prosecuted." The New York Times today contains an article headlined "Flexing Muscles, Democrats Issue 3 Subpoenas." And an editorial is entitled "Another Dubious Firing."
The Washington Times reports that "Congressional panels subpoena Rice, Rove aide."
And in The Chicago Tribune, columnist Steve Chapman has an op-ed entitled "Man of principle (Peter's)." And Newsday reports today that "Spitzer to push abortion bill." And The Los Angeles Times reports today that "State may sue EPA over clean air law; The governor says he wants action on 2005 bid to cut greenhouse gas emissions from vehicles." And today in The Washington Times, Paul Greenberg has an op-ed entitled "A small step toward life." Today in The Los Angeles Times, David G. Savage reports that "High court overturns 3 death sentences in Texas; The rulings, all decided on 5-4 votes, cite flaws in the state's old system of capital sentencing."
In The Houston Chronicle, Patty Reinert reports that "High court tosses 3 Texas death sentences; Ruling could affect dozens of state's inmates facing execution."
The Dallas Morning News reports that "Three Texas death sentences tossed; Dallas County case included as high court faults jury instruction."
The Austin American-Statesman reports that "U.S. court tosses 3 Texas death sentences; Three Texas death sentences overturned over jury rules, putting 44 more in question."
The San Antonio Express-News reports that "Ruling for 3 Texas inmates offers hope for 47 on death row."
And The Amarillo Globe-News reports that "Death ruling tossed; Decision could be far-reaching." The defendant is an adult who was residing with his elderly parents. The police knocked on the door of the residence one day when the suspect was not home and asked the defendant's elderly parent for permission to search the suspect's computer. The father gave consent, but according to the defendant the computer in question was password protected and the father did not know the password. The police used a program that creates a mirror image of the hard drive and allows the authorities to access the contents of that mirror image without any need for the password.
The majority rejects the defendant's challenge to the permission to search. The dissenting opinion of Senior Circuit Judge Monroe G. McKay begins, "This case concerns the reasonable expectation of privacy associated with password-protected computers. In examining the contours of a third party's apparent authority to consent to the search of a home computer, the majority correctly indicates that the extent to which law enforcement knows or should reasonably suspect that password protection is enabled is critical. We differ, however, over the extent to which the burden of inquiry should rest with law enforcement personnel. More specifically, I take issue with the majority's implicit holding that law enforcement may use software deliberately designed to automatically bypass computer password protection based on third-party consent without the need to make a reasonable inquiry regarding the presence of password protection and the third party's access to that password." And in other news, "Gonzales asked to answer more questions before Congress." And James Vicini of Reuters reports that "U.S. court seems split over broadcast political ads." Yesterday at National Review Online, James Bopp Jr. had an essay entitled "Silencing Criticism: The history of sham arguments for McCain-Feingold." And today, Andrew C. McCarthy has an essay entitled "Gonzales and McCain-Feingold: The attorney general abandoned the Right before it abandoned him."
And in the April 30, 2007 issue of The Weekly Standard, Charlotte Allen has an essay entitled "The Right to Life Lobby vs. McCain: They're not fighting about abortion." The Associated Press reports that "Court Skeptical of Law's Ad Limits."
At "SCOTUSblog," Lyle Denniston has a post titled "Analysis: 'Blackout' on campaign ads in doubt."
And at his "Election Law" blog, Law Professor Rick Hasen has a post titled "Initial Thoughts on Oral Argument in WRTL." And the oral argument transcript in Watson v. Phillip Morris Co., No. 05-1284, can be accessed here. Update: It was a pleasure to meet so many fans of this blog at the event, and to finally meet in person co-panelist Paul Mirengoff of the "Power Line" blog." The Court today also issued decisions in two other death penalty cases that were orally argued together (access the transcript here): Abdul-Kabir v. Quarterman, No. 05-11284 (opinion here) and Brewer v. Quarterman, No. 05-11287 (opinion here). And The Boston Globe today contains an article headlined "Act now on emissions, senators tell EPA head." And The Los Angeles Times reports today that "Critics doubt official looking into Rove; Advocacy groups cite Bloch's ties to the administration." The article begins, "A federal judge has ruled that post offices across the country that are run by churches and other organizations cannot promote religion through displays or other promotional materials. In a decision involving a church-run post office in downtown Manchester, the judge sided with a town resident who said his First Amendment rights were violated by the Christian displays."
You can access last week's ruling of the U.S. District Court for the District of Connecticut at this link. According to the article, "U.S. Court of Appeals Judge John Walker, a cousin of President Bush's, would be cleared of wrongdoing in the collision that took Picagli's life." And The Minneapolis Star Tribune reports today that "High court to decide whether Dayton's dismissal of aide was 'legislative act'; The aide alleges his firing was discrimination and wants the case tried; The former senator says the Constitution protects members of Congress from lawsuits." The Washington Post reports today that "Vonage Wins Stay in Verizon Dispute."
The Los Angeles Times reports that "Vonage wins stay of patent ruling."
And c|net News.com reports that "Vonage can keep signing up new customers." And today in The New York Sun, Joseph Goldstein reports that "Diplomats May Be Made To Honor Parking Tickets." Today in The Wall Street Journal, Jess Bravin reports that "Court Weighs Campaign Ads; Curbs on Firms, Unions In Run-Up to Elections May Ride on Alito Vote" (free access).
In The Washington Post, Robert Barnes and Matthew Mosk report that "Justices to Consider Finance Law Limits; Campaign Issue Hits Court for 3rd Time." The newspaper also contains an editorial entitled "Judging Campaign Ads: A different Supreme Court revisits the McCain-Feingold law on election financing."
David G. Savage of The Los Angeles Times reports that "Campaign funding rule before Supreme Court; A McCain-Feingold ban on corporate and union-sponsored ads before elections could be overturned or weakened."
The Associated Press reports that "Federal Election Law Faces Challenge."
The New York Times contains an editorial entitled "A Test for the Roberts Court."
In The Washington Times, Bradley A. Smith and Stephen M. Hoersting have an op-ed entitled "McCain-Feingold and free speech."
And at "SCOTUSblog," Lyle Denniston previews the oral argument in a post titled "Election season begins: Argument 4/25/07." In other news, "A&M officials retain immunity from Bonfire lawsuits." My earlier coverage of yesterday's Fifth Circuit ruling appears at this link.
And an article reports that "Human smuggler could return to prison; 5th Circuit says judge misapplied sentencing rules in truck deaths case." You can access last week's Fifth Circuit ruling at this link. And in other news, "Paintball-Shooting Toll Collector Can Go Back to Work, Court Says." You can access yesterday's ruling of the Supreme Court of New Jersey at this link. My earlier coverage of today's en banc Fifth Circuit ruling appears at this link. And The Washington Post on Wednesday will report that "Mexico City's Legislature Votes to Legalize Abortion." And the opinion ends, "For these reasons, we conclude that defendants are entitled to qualified immunity from suit based on plaintiffs' section 1983 claims, and we therefore AFFIRM the summary judgment of the district court dismissing plaintiffs' complaints." And The Grand Forks Herald reports today that "N.D. Legislature outlaws abortion in N.D. with 'trigger' bill." The Associated Press reports that "Mexico City Lawmakers Pass Abortion Bill."
And Reuters reports that "Mexico City legalizes abortion, defies Church." And Gail Russell Chaddock will have an article headlined "Bush, Congress reach for war's reins; The showdown this week between President Bush and Congress on war funding is a constitutional issue over who controls the military." Update: You can access at this link the transcript of today's U.S. Supreme Court oral argument in Office of Sen. Mark Dayton v. Hanson, No. 06-618. And the transcript in Beck v. PACE Int'l Union, No. 05-1448, can be accessed here. According to that second dissent, "Properly framed, the question is whether vacatur is appropriate when voluntary action taken by an appellant moots a case, but the action taken is completely unrelated to the litigation. The question should be answered in the affirmative. Admittedly, the few vacatur rules given to us by the Supreme Court do not directly answer the question, and our Court has not yet squarely addressed it. However, every other circuit court to address the issue has determined that vacatur is appropriate under such circumstances."
I wrote about this case in the September 5, 2006 installment of my weekly "On Appeal" column for law.com, headlined "Monument at Houston Courthouse Tests the Limits of Ten Commandments Rulings." Circuit Judge Marsha S. Berzon issued that ruling on behalf of a unanimous three-judge Ninth Circuit panel. Yet Judge Berzon was the only active Ninth Circuit judge on that panel, and apparently some of her colleagues on that court were less than enthusiastic about the ruling, as today the Ninth Circuit issued an order granting rehearing en banc in the case. The Associated Press reports that "Vonage Injunction Stayed in Patent Case."
And Reuters provides a report headlined "Vonage says wins court stay in Verizon patent fight." The Denver Post reports today that "Race, sex emphasis in Colo. targeted; Vote eyed to quash affirmative action."
The Colorado Springs Gazette reports that "Affirmative action may be bound for ballots."
And The Washington Times reports that "Colorado takes aim at race, sex preferences." The Chicago Tribune today contains an editorial entitled "The man who was not there." In addition, Law Professor Douglas W. Kmiec has an op-ed entitled "Gonzales case merely a footnote."
And in The Boston Globe, columnist Peter S. Canellos has an essay entitled "Support of Gonzales affirms power play." You can access yesterday's ruling of the Supreme Judicial Court of Massachusetts at this link. Michael F. Greene, M.D. has an essay entitled "The Intimidation of American Physicians -- Banning Partial-Birth Abortion."
And Jeffrey M. Drazen, M.D. has an essay entitled "Government in Medicine."
A bit earlier this morning, I linked here to some press coverage of these essays. The Los Angeles Times today contains articles headlined "Bush endorses attorney general's testimony on firings; Gonzales 'increased my confidence in his ability to do the job,' president says; But others wonder if the White House fears Rove could be targeted" and "Low-key office launches high-profile inquiry; The Office of Special Counsel will investigate U.S. attorney firings and other political activities led by Karl Rove."
The Washington Times reports that "Gonzales vows to stay in attorney general job."
Bloomberg News reports that "Bush's 'Confidence' May Not Equal Job Security for Gonzales."
And today's installment of Dana Milbank's "Washington Sketch" column in The Washington Post is headlined "Identity Theft? Gonzales Might Know Something About That." The newspaper also contains an editorial entitled "Hearing Problem: What will it take for the president to lose faith in Alberto Gonzales?" Reuters provides a report headlined "Supreme Court abortion rule chills doctors: journal."
And The Washington Post today contains an article headlined "Va. Law to Be Reconsidered In Wake of High Court Ruling; State's Ban on Procedure Overturned in 2005" that begins, "The Supreme Court decision upholding the federal ban on a controversial abortion procedure started playing out in Virginia yesterday, as the justices ordered a Richmond-based appellate court to reconsider the state law it struck down barring the procedure." The New York Times reports today that "Breast Cancer Not Linked to Abortion, Study Says."
The Los Angeles Times reports today that "Abortion doesn't boost breast cancer risk, large study finds; The research lasted a decade and involved more than 100,000 women."
And The Chicago Tribune contains an article headlined "Study: No abortion, breast cancer link."
You can access a summary of the study's results at this link. My earlier coverage of yesterday's en banc Eighth Circuit ruling appears at this link. The Washington Post reports today that "Administration Yields on Wiccan Symbol; Pentacle to Be Permitted on Tombstones in U.S. Military Burial Grounds."
In The New York Sun, Josh Gerstein reports that "Feds Okay Pentagrams for Veterans' Graves."
And The Washington Times reports that "U.S. to allow Wiccan symbols on military graves." And in news from Florida, "Defense Bar Protests Removal of Plea Deals From U.S. Web Site." And Michael Doyle of McClatchy Newspapers reports that "Supreme Court considers case involving searches of car passengers." And The Washington Post on Tuesday will report that "Bush Asserts Increased Confidence in Gonzales." The Court has posted online at this link the transcript of today's oral argument in Brendlin v. California, No. 06-8120.  
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