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Archived: 09/06/2007 at 17:38:00
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Thursday, September 06, 2007 Oral argument becomes somewhat more difficult to obtain in the Second Circuit: While I was away on vacation last week, that federal appellate court issued this order. Posted at 01:18 PM by Howard Bashman "Judge rules groups that pushed Prop 2 can't intervene in affirmative action case": The Detroit News provides an update that begins, "The group that backed Michigan's ballot drive that banned affirmative action in much of the public sector may not intervene in a court case challenging the constitutionality of the ban, a federal appeals court ruled today." You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link. "Judge Strikes Down Part of Patriot Act": The Associated Press provides a report that begins, "A federal judge struck down parts of the revised USA Patriot Act on Thursday, saying investigators must have a court's approval before they can order Internet providers to turn over records without telling customers." Posted at 01:12 PM by Howard Bashman "May the payor of a bribe to a state official conspire with that official to extort property from himself in violation of the Hobbs Act?" A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit answered that question "no" in an opinion issued today. Circuit Judge Jeffrey S. Sutton is the opinion's author. Posted at 01:08 PM by Howard Bashman Programming note: I am traveling to Atlanta this morning, where tomorrow I'll be speaking at the Federal Bar Association Annual Meeting and Convention. Additional posts will appear later today. Posted at 06:20 AM by Howard Bashman Wednesday, September 05, 2007 "Va. Tech Victims' Families Weigh Suits Against State; State's Immunity May Be Subjected To Challenge": This article will appear Thursday in The New York Times. Posted at 11:47 PM by Howard Bashman "Despite DNA Test, Prosecutor Is Retrying Case": Thursday's edition of The New York Times will contain this article. Posted at 11:44 PM by Howard Bashman "Derailing Southwick may take filibuster": This article appears today in The Clarion-Ledger of Jackson, Mississippi. Posted at 10:05 PM by Howard Bashman "[W]e conclude that the government's evidence concerning Mr. Schaefer's use of the Internet, standing alone, was not sufficient to establish that the child-pornography images at issue moved across state lines." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit in a ruling issued today. According to the decision, "we decline to assume that Internet use automatically equates with a movement across state lines." The ruling is a victory for Denver-based Assistant Federal Public Defender Howard A. Pincus, lead counsel for the defendant-appellant on appeal. Pincus and I worked as co-clerks many years ago for the same judge on the Third Circuit. Posted at 09:07 PM by Howard Bashman "Book says Souter mulled resignation after Bush v. Gore": So states this post at the "Yeas & Nays" blog at Examiner.com, previewing Jeffrey Toobin's forthcoming book, "The Nine." And The Manchester (N.H.) Union Leader today contains an article headlined "Did Souter cry over 2000 recount vote?" The Associated Press is reporting: An article headlined "Judge Scolds U.S. on Wiretapping Records" reports on a decision that the U.S. District Court for the District of Columbia issued today in the case captioned Electronic Privacy Information Center v. Department of Justice. And in other news, "Some Lawmakers Wary of Surveillance Law." "Judge rules for Fieger; Federal edict strikes down state court rules used to discipline lawyer": The Detroit News today contains an article that begins, "Embattled Southfield attorney Geoffrey Fieger scored a victory Tuesday when a federal judge in Detroit declared unconstitutional Michigan court rules that were used to discipline him." And The Associated Press reports that "Judge Sides With Ex-Kevorkian Lawyer." You can access yesterday's ruling of the U.S. District Court for the Eastern District of Michigan at this link. "Noriega Lawyers Ask to Block Extradition": The Associated Press provides this report. Posted at 02:30 PM by Howard Bashman By a vote of 2-1, three-judge Ninth Circuit panel holds that the City of Chandler, Arizona did not violate police officer's First Amendment rights by terminating him for "participating in (performing in, recording and purveying) a sexually explicit website with his wife": You can access today's Ninth Circuit ruling at this link. The majority opinion's "Discussion" section begins, "The major issue before us is whether Ronald Dible's First Amendment right to freedom of speech was violated when he was terminated for maintaining and participating in a sexually explicit website with his wife, Megan Dible. In fact, for all practical purposes, the other issues in this case hinge on the decision of that issue. We will, therefore, consider it first and consider the other issues raised by the Dibles thereafter." Senior Circuit Judge William C. Canby, Jr. dissented from the majority's unwillingness to hold that the officer's firing violated the First Amendment. Judge Canby writes in his separate opinion: "Now, I recognize that pornography, although apparently popular, is not a very respected subject of First Amendment protection in many quarters. The majority opinion here reflects that distaste, variously characterizing Dible's expressive activities as 'vulgar,' 'indecent,' 'sleazy,' and 'disreputable.' But vigorous enforcement of the free speech guarantee of the First Amendment often requires that we protect speech that many, even a majority, find offensive. Pornography, and sexual expression in general, is protected by the First Amendment when it does not constitute obscenity (and there is no showing that Dible's expression meets that extreme standard). We should accept that fact and accord Dible's expression the constitutional protection to which it is entitled." "Beatty takes his place in history on Supreme Court; Will take oath as second black state high court justice since Reconstruction": The Spartanburg (S.C.) Herald-Journal today contains an article that begins, "Spartanburg's Don Beatty will be sworn in as a South Carolina Supreme Court justice this afternoon, taking his place in history as the second black man to sit on that bench since Reconstruction." Posted at 11:58 AM by Howard Bashman The remainder of the alphabet was sadly unavailable for litigation: The U.S. Court of Appeals for the Second Circuit issued its ruling today in the case captioned ABC v. DEF. The opinion explains how the case came to have that unusual caption. Demonstrating that being toward the start of the alphabet isn't all bad, ABC has achieved a partial victory in today's ruling. Posted at 11:40 AM by Howard Bashman "May a municipal jail, consistent with the Due Process Clause of the Fourteenth Amendment, withhold a portion of an inmate's canteen-account funds in order to cover the costs of booking, room and board without providing the inmate with a hearing before it withholds the money?" So begins an opinion that Circuit Judge Jeffrey S. Sutton issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit. The court's answer to that question is "yes." Posted at 11:11 AM by Howard Bashman "Microsoft Patent Win in Court May Cut Its Chances in Congress": Bloomberg News provides a report that begins, "Microsoft Corp.'s success in reversing a $1.52 billion trial loss was the latest in a series of court victories that may undermine its chance for broad changes in U.S. patent law this year." Posted at 11:08 AM by Howard Bashman "Muslim sues O.C. over right to wear head scarf; Deputies asked the woman to remove her head covering while in custody in O.C." The Los Angeles Times today contains an article that begins, "A Muslim whose religious practice requires that she cover her head in public sued the Orange County Sheriff's Department on Tuesday, alleging her rights were violated when jail officials forced her to remove a head scarf while locked up for about eight hours." And The Orange County Register reports today that "Muslim woman sues sheriff; Woman says religious rights were violated when deputies forced her to remove her head scarf." "D.C. Case Could Shape Gun Laws; Supreme Court Is Asked to Uphold Ban": Robert Barnes and David Nakamura have this front page article today in The Washington Post, which also contains an editorial entitled "The District Appeals: The city defends its gun law -- and opens the door to a definitive reading of the Second Amendment." And The Washington Times reports today that "City asks high court to uphold gun ban." "Murder case turns on 41-year diagnosis: Did a 1966 shot cause an officer’s death? A medical fight looms." The Philadelphia Inquirer contains this article today. Posted at 09:32 AM by Howard Bashman "New Book Details Cheney Lawyer's Efforts to Expand Executive Power": This front page article appears today in The Washington Post. Posted at 08:50 AM by Howard Bashman "Broadcom wins antitrust appeal against Qualcomm": Reuters provides this report. My earlier coverage of yesterday's Third Circuit ruling appears at this link. "Hawaii Ferry Sits Idle Amid Protests and Court Rulings": This article appears today in The New York Times. The Honolulu Advertiser reports today that "Kauai court asked to bar Hawaii Superferry." And The Honolulu Star-Bulletin reports that "Superferry saga moves to courts; Legal action taken by Kauai and Maui groups will be heard tomorrow." "Court upholds CIA's power to keep president's daily briefing secret": Bob Egelko has this article today in The San Francisco Chronicle. Today in The Oakland Tribune, Josh Richman reports that "Court lets old CIA briefs stay secret; Vietnam-era intelligence can sidestep Freedom of Information Act." In The New York Sun, Josh Gerstein reports that "Presidential Briefings May Be Kept Secret." And Reuters reports that "Even 40 years later CIA briefings to stay secret." My earlier coverage of yesterday's Ninth Circuit ruling appears at this link. "Appeals Court Dismisses Elevator Antitrust Suit": This article appears today in The New York Sun. My earlier coverage of yesterday's Second Circuit ruling can be found at this link. Tuesday, September 04, 2007 "Exhibit A in Painting Court as Too Far Right": Wednesday in The Washington Post, Robert Barnes will have an article that begins, "Lilly Ledbetter's pay discrimination case before the Supreme Court raised no constitutional quandaries and never received much attention. Until it was decided." Posted at 11:54 PM by Howard Bashman "Sex, Drugs & a Federal Prosecution: The shabby case against Dr. Bernard L. Rottschaefer." Radley Balko has this essay online at Reason. Posted at 09:10 PM by Howard Bashman "Parker v. District of Columbia: DC Gun Ban Case." The Federalist Society hosted this online debate last week (via "InstaPundit"). Posted at 09:05 PM by Howard Bashman Tenth Circuit reinstates First Amendment challenge to section 514 of the Uruguay Round Agreements Act, by means of which Congress reinstated copyright protection for some foreign works already in the public domain: Law Professor Lawrence Lessig argued the appeal that produced this decision today from a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit. Additional background on the case -- Golan v. Gonzales -- can be accessed here, here, and here. "This appeal presents important questions regarding whether a patent holder's deceptive conduct before a private standards-determining organization may be condemned under antitrust laws and, if so, what facts must be pled to survive a motion to dismiss." So begins the ruling of the U.S. Court of Appeals for the Third Circuit today in Broadcom Corp. v. Qualcomm Inc. Posted at 05:58 PM by Howard Bashman "Alan Morrison, back in the saddle": Tony Mauro has this post today at "The BLT: The Blog of Legal Times." Posted at 05:00 PM by Howard Bashman "Schools Await Princeton Donor Ruling": The Associated Press provides a report that begins, "Colleges around the country are closely watching for a key ruling in a bitter legal battle between Princeton University and a disgruntled alumnus who claims the school misspent the millions his family left the school in 1961." Posted at 04:05 PM by Howard Bashman "[The defendant] maintains that the district court judge who imposed the sentence should have recused himself after [the defendant] obtained the judge's home telephone number and left at least one threatening message prior to his sentencing." Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit rejects that argument, holding that "the district judge reasonably construed [the defendant's] threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal." According to the decision, the defendant had been convicted "for mailing threatening communications and threatening the President of the United States." "For nearly half a century, the CIA has each day sent the President a highly classified summary of the most important and timely intelligence relating to this country’s national defense and foreign policy priorities." So begins the first paragraph of a decision that a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today. The opinion's first paragraph goes on to state (some citations omitted): "We must decide in this case whether two of these reports -- known as the President's Daily Brief (PDB) -- from the administration of President Lyndon B. Johnson are exempt from disclosure under the Freedom of Information Act (FOIA). We hold that the CIA has provided ample justification that the disclosure of the two PDBs would reveal protected intelligence sources and methods, and thus these PDBs are protected by FOIA exemption 3 and the National Security Act." "D.C. Asks Supreme Court to Back Gun Ban": Robert Barnes and David Nakamura of The Washington Post provide this news update. Posted at 02:18 PM by Howard Bashman The Associated Press is reporting: Now available online are articles headlined "D.C. Appeals to Supreme Court on Gun Law" and "Convicted Peeper Sues to Get Porn Back." Posted at 02:15 PM by Howard Bashman "Ruling On Blog Rant Troubling": Columnist Rick Green has this op-ed today in The Hartford Courant. The op-ed focuses on a decision that U.S District Judge Mark R. Kravitz of the District of Connecticut issued last Friday. Judge Kravitz's opinion begins: Social networking websites and blogs (or web logs) have in recent years become an important part of the lives of young people, and many adults. But as some have come to discover to their chagrin, postings on such sites and blogs are often very public and the statements and information posted can have consequences for the blogger.Saturday's issue of The Courant contained an article headlined "Judge Rules On Student's Slur" reporting on the decision. Posted at 11:24 AM by Howard Bashman "Second Amendment case reaches Court": At "SCOTUSblog," Lyle Denniston has a post that begins, "Relying upon strong rhetoric and the argument that access to handguns is a direct threat to peoples' lives in the Nation's capital, the District of Columbia government urged the Supreme Court on Tuesday to spare the city's gun control law from nullification under the Second Amendment." That blog has posted both the cert. petition and accompanying appendix online. Posted at 11:18 AM by Howard Bashman In re Elevator Antitrust Litigation goes up to the Second Circuit, which affirms the dismissal of that lawsuit: You can access today's ruling at this link. Only time will tell whether plaintiffs will next seek to have their case ascend to the U.S. Supreme Court. Posted at 11:10 AM by Howard Bashman "At 11th Circuit, What Happens at Oral Argument Stays at Oral Argument: A look at a federal appellate court's rule denying access to oral argument audiotapes." Today's installment of my "On Appeal" column for law.com can be accessed here. Posted at 10:12 AM by Howard Bashman The U.S. Court of Appeals for the D.C. Circuit has redesigned the home page of its web site: You can access the redesigned home page at this link. Posted at 10:08 AM by Howard Bashman "Exacting Donors Reshape College Giving": The Washington Post contains this front page article today. Posted at 08:30 AM by Howard Bashman "Appeals Court Finds Ugly Implications in City's Anti-Truck Law; Class, Not Aesthetics, May Be Real Issue, Judges Suggest in Overturning Code": This article appears today in The Washington Post. My earlier coverage of last month's ruling of Florida's Third District Court of Appeal can be accessed here. "Fighting for Our Handgun Ban": Today in The Washington Post, Adrian M. Fenty and Linda Singer have an op-ed that begins, "As mayor and attorney general of the District of Columbia, we were deeply disappointed this year when the U.S. Court of Appeals for the D.C. Circuit declared that the District's longstanding handgun ban violates the Second Amendment. Today we are asking the U.S. Supreme Court to review the decision in that case, which we think threatens public safety and is wrong on the law." Posted at 08:22 AM by Howard Bashman "Control of Dances Is at Issue in Lawsuit": This article appears today in The New York Times. Posted at 08:04 AM by Howard Bashman "The Wrong Answer in Connecticut": The New York Times today contains an editorial which argues that "The appeal of a 'three strikes and you're out' law is understandable, but these laws have proven to be blunt instruments that cause more injustice than they prevent." Posted at 07:55 AM by Howard Bashman "Conscience of a Conservative": In the Sunday, September 9, 2007 issue of The New York Times Magazine, Law Professor Jeffrey Rosen will have an article that begins, "In the fall of 2003, Jack L. Goldsmith was widely considered one of the brightest stars in the conservative legal firmament. A 40-year-old law professor at the University of Chicago, Goldsmith had established himself, with his friend and fellow law professor John Yoo, as a leading proponent of the view that international standards of human rights should not apply in cases before U.S. courts." Posted at 07:52 AM by Howard Bashman "Defense for Islamic Charity To Call Witnesses": Josh Gerstein has this article today in The New York Sun. The Los Angeles Times on Sunday reported that "Holy Land federal witnesses go uncalled; Prosecutors rely on FBI and Israeli testimony to make their case against the charity; The defense begins Tuesday." And last Friday's edition of The Dallas Morning News reported that "Government rests in Holy Land trial; Defense in terror financing trial to call first witness next week." "DNA backlog piles up for FBI; Samples increase by 80,000 in '06": Richard Willing has this front page article today in USA Today, along with an article headlined "DNA lag leaves potential for crime; Samples have yet to be analyzed." Posted at 07:40 AM by Howard Bashman "In Chertoff's record, shades of politics; His past at Justice may be a hurdle if he's picked to succeed Alberto Gonzales as attorney general": David G. Savage and Tom Hamburger will have this article Tuesday in The Los Angeles Times. Posted at 12:00 AM by Howard Bashman Monday, September 03, 2007 "9/11 Lawsuits Will Get Their Day in Court": This article will appear Tuesday in The New York Times. Posted at 11:58 PM by Howard Bashman "Government opposes release of secret court orders": Lyle Denniston has this post today at "SCOTUSblog." You can access the federal government's brief at this link. Posted at 09:07 PM by Howard Bashman "Gonzales Case Echoes FDR's AG Problems": This audio segment (RealPlayer required) featuring Nina Totenberg appeared on today's broadcast of NPR's "Morning Edition." Posted at 09:04 PM by Howard Bashman "The confrontation clause and testimony about the results of blood tests to prove that the defendant had committed the offense of driving while impaired": Back on August 22, 2007, I reported here on an interesting ruling that a divided three-judge Fourth Circuit panel issued that day. The November 2007 issue of the Tulane Law Review will contain an article by Stephen Aslett addressing this very issue at length. The article is titled "Crawford's Curious Dictum: Why Testimonial Nonhearsay Implicates the Confrontation Clause" (abstract with links for download). "Blawg Review #124; Labor Day Special Historical Edition": Available online here, today at "George's Employment Blawg." Posted at 04:17 PM by Howard Bashman "A Labor Fools' Day Story": ABC News correspondent Jan Crawford Greenburg has this post at her "Legalities" blog about the front page story today in The Washington Post focusing on a new book about the Bush presidency. The book reports that Chief Justice John G. Roberts, Jr. had suggested to President Bush that Harriet E. Miers be nominated to fill the vacancy created on the U.S. Supreme Court when Justice Sandra Day O'Connor retired. Jan and I will both be in Atlanta later this week to speak at the Federal Bar Association Annual Meeting and Convention. "Shield law lets press do its job": The St. Petersburg Times today contains an editorial that begins, "A small victory for press freedom occurred before Congress went on its summer break when a bill to create a federal shield law passed the House Judiciary Committee on a voice vote." Posted at 02:42 PM by Howard Bashman "It's Been A Wild Ride For AG's Chief Aide": Lynne Tuohy has this article today in The Hartford Courant. Posted at 02:35 PM by Howard Bashman "What the Constitution says about Iraq: Congress and the courts must recommit to the legislative branch's sole authority to declare war." Mario M. Cuomo has this op-ed today in The Los Angeles Times. Posted at 02:30 PM by Howard Bashman "Czech Bill On Child Porn Faces Resistance; Unlike Most of E.U., Possession Is Legal": This article appears today in The Washington Post. Posted at 02:11 PM by Howard Bashman Chief Justice John G. Roberts, Jr. rejects book's account that he suggested President Bush nominate Harriet E. Miers to fill the vacancy created when Justice Sandra Day O'Connor retired: An updated version of today's front page article published in The Washington Post can be accessed here. Posted at 01:50 PM by Howard Bashman "Court: Mexican Trucks Program to Proceed." The Associated Press provides a report that begins, "The Bush administration can go ahead with a pilot program to allow as many as 100 Mexican trucking companies to freely haul their cargo anywhere within the U.S. for the next year, a federal appeals court ruled Friday." Reuters reports that "Mexico trucks to roll on U.S. highways." And The Arizona Republic reports today that "Teamsters continue to battle Mexican trucks." You can access Friday's order of the U.S. Court of Appeals for the Ninth Circuit at this link. "Whales get blown off: Federal court says Navy can do sonar testing." Bob Egelko had this article Saturday in The San Francisco Chronicle. The Los Angeles Times on Saturday reported that "Court gives Navy go-ahead to use sonar off coast; Appellate ruling gives the go-ahead for training off the Southland coast, despite concerns that whales may be harmed." And The Honolulu Star-Bulletin today contains an editorial entitled "Appeals court ruling on Navy sonar sits on fragile ground." You can access last Friday's decision of the U.S. Court of Appeals for the Ninth Circuit at this link. Sunday, September 02, 2007 "Roberts Suggested Miers, Book Says; Author Delves Inside Bush Controversies": The Washington Post on Monday will contain a front page article that begins, "John G. Roberts Jr., now the chief justice of the United States, suggested Harriet Miers to President Bush as a possible Supreme Court justice, according to a new book on the Bush presidency." Posted at 11:58 PM by Howard Bashman "With the Bench Cozied Up to the Bar, the Lawyers Can't Lose": Last Monday's installment of Adam Liptak's "Sidebar" column can be accessed here (TimesSelect temporary pass-through link). The essay begins, "Dennis G. Jacobs, the chief judge of the federal appeals court in New York, is a candid man, and in a speech last year he admitted that he and his colleagues had 'a serious and secret bias.' Perhaps unthinkingly but quite consistently, he said, judges can be counted on to rule in favor of anything that protects and empowers lawyers." "New Terrorism Court: U.S. v. Omar Ahmed Khadr." Speaking of appellate court oral argument audio available online (see my post immediately below), C-SPAN has posted online at this link (RealPlayer required) the recent oral argument held before the U.S. Court of Military Commission Review in United States v. Khadr. I previously collected press coverage of this oral argument at this link. "At 11th Circuit, What Happens at Oral Argument Stays at Oral Argument: A look at a federal appellate court's rule denying access to oral argument audiotapes." The brand new installment of my "On Appeal" column for law.com can be accessed here. Posted at 11:45 PM by Howard Bashman "The Mess He Left Behind: Gonzales's successor will face daunting challenges at a scandal-plagued agency." Emma Schwartz will have this article in the September 10, 2007 issue of U.S. News & World Report. And in this upcoming week's issue of Legal Times, Pedro Ruz Gutierrez and Tony Mauro will have an article headlined "DOJ Seeks to Recover From Gonzales' Tenure; Many observers say the attorney general leaves behind a Main Justice in disarray."  
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