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Thursday, January 03, 2008 "Since the placebo effect can be obtained from sugar pills, charging $200 for a device that is represented as a miracle cure but works no better than a dummy pill is a form of fraud." Defendants ordered to disgorge more than $16 million in profits obtained through selling the Q-Ray Ionized Bracelet as a miraculous cure for chronic pain failed to obtain any relief today when a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirmed in all respects a federal district court's ruling in favor of the Federal Trade Commission. The FTC has made available various trial court documents in the case via this link. You can access Chief Judge Frank H. Easterbrook's entertaining decision on behalf of a unanimous three-judge panel at this link. Does a chemist violate the Confrontation Clause when testifying that the substance seized from defendants was cocaine based on the output of infrared spectrometer and a gas chromatograph test results that another, non-testifying chemist produced? 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 holds that "the instruments' readouts are not 'statements', so it does not matter whether they are 'testimonial.'" The Seventh Circuit's ruling goes on to explain: A physician may order a blood test for a patient and infer from the levels of sugar and insulin that the patient has diabetes. The physician's diagnosis is testimonial, but the lab's raw results are not, because data are not 'statements' in any useful sense. Nor is a machine a 'witness against' anyone. If the readings are 'statements' by a 'witness against' the defendants, then the machine must be the declarant. Yet how could one cross-examine a gas chromatograph? Producing spectrographs, ovens, and centrifuges in court would serve no one's interests. That is one reason why Rule 703 provides that the expert's source materials need not be introduced or even admissible in evidence. The vital questions--was the lab work done properly? what do the readings mean?--can be put to the expert on the stand. The background data need not be presented to the jury.You can access the complete ruling at this link. Posted at 12:05 PM by Howard Bashman Does a Seattle Housing Authority regulation prohibiting the posting of signs on the exterior of resident apartment doors violate the First Amendment rights of low income tenants? Today, by a vote of 5-4, the Supreme Court of the State of Washington answers "yes." Today's decision consists of a majority opinion and a dissenting opinion. Posted at 11:27 AM by Howard Bashman "New Trial Ordered For Former Radical; Judge Rules Judith Clark Did Not Get Fair Trial In Brinks Robbery": So reported The Associated Press in an article published in late September 2006. The article begins, "A federal judge has ordered a new trial for a radical Weather Underground cell member serving 75 years in prison after she was convicted as a getaway driver in a 1981 armored-truck robbery in which a guard and two policemen were killed." And The New York Times, on October 1, 2006, published an article headlined "New Trial for Woman in 1981 Brink's Case Is Reopening Old Wounds." The article begins, "It has been a quarter-century since a group of self-styled freedom fighters, including Judith A. Clark, carried out an armored-car robbery in Rockland County, N.Y." Today, however, a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a 40-page ruling overturning the grant of a new trial in favor of Judith Clark. "Gag order raises questions in Liberty City terror retrial": The South Florida Sun-Sentinel today contains an article that begins, "A federal judge who declared a mistrial last month for six South Florida men charged with conspiring to support al-Qaida is taking aggressive steps to limit publicity related to the case, including silencing lawyers for a man the jury found not guilty." (Via "Southern District of Florida Blog.") And a few weeks ago, Jay Weaver of The Miami Herald had an article headlined "Judge lays out rules for terror retrial." On today's broadcast of NPR's "Morning Edition": The broadcast contained audio segments entitled "Federal Prosecutor Named to CIA Probe" and "Updating the Foreign Intelligence Surveillance Act." Posted at 10:01 AM by Howard Bashman "For judges, a justifiable raise: A bill to increase their wages and sever a link to Congress members deserves approval." This editorial appears today in The Los Angeles Times. Posted at 08:40 AM by Howard Bashman "Criminal Probe on CIA Tapes Opened; Case Assigned to Career Prosecutor": The Washington Post contains this front page article today, along with an article headlined "Probe Leader Called A Tough Prosecutor; Durham Handled Corruption, Mafia Cases" and an editorial entitled "Mr. Mukasey's Move: The destruction of CIA interrogation tapes will get the criminal investigation it deserves." The New York Times today contains a front page article headlined "Justice Dept. Sets Criminal Inquiry on C.I.A. Tapes" and an editorial entitled "The Right Move on the C.I.A. Tapes." The Los Angeles Times reports that "Mukasey launches probe of CIA; A top mob-busting prosecutor will head the Justice Department's inquiry on the agency's destruction of videotapes of terrorism suspects' interrogations." USA Today reports that "CIA to yield to criminal probe; Mukasey assigns outside prosecutor in destroyed-tapes case." The Hartford Courant reports that "Leader Chosen In CIA Probe; Attorney General Names Prosecutor From Connecticut." And The Washington Times reports that "Justice commences CIA videotape inquiry." "Attorney For D.C. in Gun Ban Case Fired; Counsel Was Set To Defend Law Before High Court": This article appears today in The Washington Post. And The Washington Times reports today that "District fires lead lawyer in gun-ban case." "Reversed 1970 Adoption Decision Is Circulating In Blogosphere As Current": The blog "Religion Clause" has this post today. As if to prove the point, just last night a reader sent me a link to this Time magazine article -- which currently ranks as the "most popular" article on the entire Time web site -- along with the message "Here's an interesting case the NJ Supreme Court agreed to hear." True enough -- although the Time article is from 1970 and, according to the "Religion Clause" post, New Jersey's highest court reversed the ruling in question in 1971. The Technorati site compiles recent links to the Time article. "Accused judge's return to bench draws protest": This article appears today in The Houston Chronicle. And The Associated Press reports that "Protesters greet return of judge accused of sexual harassment." "Dallas man on death row gets fourth trial after review; Man first sentenced in '75 to have fourth chance in court": The Dallas Morning News contains this article today. You can access last week's non-precedential ruling of the U.S. Court of Appeals for the Fifth Circuit at this link. "Push made to post court data on Web; Maine's judicial branch aims to make documents available while protecting privacy": This article appears today in The Portland Press Herald. Posted at 07:17 AM by Howard Bashman "What kind of reason is that?" Today in The Fort Worth Star-Telegram, columnist Linda P. Campbell has an op-ed that begins, "It might be easier if the death penalty case coming before the Supreme Court on Monday involved a dry sponge." Posted at 07:15 AM by Howard Bashman "High court urged to take up water fight; Montana wants to sue Wyoming over river compact": The Billings Gazette today contains an article that begins, "The U.S. Office of the Solicitor General filed a brief in Washington, D.C., on Wednesday that urged the U.S. Supreme Court to accept a lawsuit Montana wants to bring against Wyoming over water rights on the Tongue and Powder rivers." Posted at 07:14 AM by Howard Bashman "1 appeal to delay Wecht trial is rejected": Today in The Pittsburgh Tribune-Review, Jason Cato has an article, in which I am quoted, that begins, "A federal appeals court has denied one of three requests to delay the upcoming corruption trial of former Allegheny County Coroner Dr. Cyril H. Wecht." And The Pittsburgh Post-Gazette reports today that "3rd Circuit denies Wecht trial delay." "Full Nevada Supreme Court taking 'baseball rule' case": The Associated Press provides a report that begins, "The state Supreme Court is poised to decide whether stadium owners should be held liable when fans are hit by baseballs or suffer other game-related injuries while sitting in the stands at Nevada sporting events. A three-judge panel issued a brief order Dec. 28 saying all seven justices will decide the case with no additional oral or written arguments. No date was set for a ruling." Earlier, in October 2007, The Las Vegas Review-Journal published an article about the case headlined "Ballpark injury case to make law; Stadium's duty to protect fans is limited, attorneys contend." "Justice says medical malpractice reforms fueling absurd cases": This article appeared Wednesday in The Charleston (W. Va.) Daily Mail. Posted at 12:15 AM by Howard Bashman "States Hesitate to Lead Change on Executions": Adam Liptak has this article today in The New York Times. The Associated Press reports that "China to Switch to Lethal Injections." Reuters reports that "China favors execution by lethal injection." And syndicated columnist James J. Kilpatrick has an essay entitled "How Cruel is 'Cruel'?" Wednesday, January 02, 2008 "Barnes allies acquire new attorney": This article, in which I am mentioned, appears in today's issue of Montgomery Life. Posted at 11:55 PM by Howard Bashman "Justice Department to Investigate CIA Tapes": This audio segment appeared on this evening's broadcast of NPR's "All Things Considered." Posted at 10:02 PM by Howard Bashman "Police Say Hagler Tape Contains Dialogue Of Murder, Torture": The Chattanoogan provides a news update that begins, "Chattanooga Police officers testified Wednesday that a tape made by Judge John Hagler contained 'shocking' dialogue relating to a murder and torture. Asked if release of the tape would be very damaging to the judge and his family, Det. Bill Phillips said, 'I guarantee you it would.'" And The Associated Press reports that "Tenn. Judge Resigns Over Fantasies Tape." "Justice Dept. Sets Criminal Inquiry Into C.I.A. Tapes": The New York Times provides this news update. The Los Angeles Times provides a news update headlined "Justice Dept. opens criminal probe in CIA tapes case." And McClatchy Newspapers report that "Criminal inquiry ordered into destruction of CIA tapes." "We agree with the conclusion of several of our sister circuits that a punitive damages award under Title VII and ยง 1981 need not be accompanied by compensatory damages." So holds a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in a decision issued today. The ruling affirms a jury's award of $125,000 in punitive damages, but zero dollars in compensatory damages, to each of eight plaintiffs in a case where the plaintiffs alleged a racially hostile work environment. "Pa. sperm donor wins challenge to court-ordered child support": The Associated Press provides a report that begins, "A woman who promised a sperm donor he would not have to pay child support cannot renege on the deal, the Pennsylvania Supreme Court ruled." Last Thursday's 3-2 ruling of the Supreme Court of Pennsylvania consists of a majority opinion and two dissenting opinions (here and here). "D.C. Lawyer Preparing to Defend City's Gun Ban Fired": The Washington Post provides this news update. Posted at 04:20 PM by Howard Bashman "During winter recess, Democrats keep Congress in session to thwart Bush; The tactic is a result of a 'press for presidential power,' some analysts say; But it's too early to tell whether the use of pro forma sessions will mean no more recess appointments by the president": Gail Russell Chaddock will have this article Thursday in The Christian Science Monitor. Posted at 04:10 PM by Howard Bashman "U.S. Opens Criminal Probe of CIA Tape Destruction": James Rowley of Bloomberg News provides this report. The Associated Press reports that "Criminal Probe Opened Over CIA Tapes." Reuters reports that "U.S. launches criminal probe of CIA tapes." The Washington Post provides a news update headlined "Justice Dept. to Open Criminal Probe in CIA's Destruction of Tapes." And The Hartford Courant provides a news update headlined "Connecticut Prosecutor Named To Head CIA Probe." Also available online is the "Statement by Attorney General Michael B. Mukasey Regarding the Opening of an Investigation Into the Destruction of Videotapes by CIA Personnel." "Top D.C. lawyer weighs in on Morrison firing": At "The BLT: The Blog of Legal Times," Tony Mauro now has a new post that begins, "In an interview with Legal Times today, Peter Nickles, D.C. Mayor Adrian Fenty's general counsel, said he is considering Supreme Court veterans Walter Dellinger III and Thomas Goldstein as possible replacements for Alan Morrison to argue D.C.'s cause at the Supreme Court in the key gun control case of D.C. v. Heller." Posted at 03:55 PM by Howard Bashman Today is the last day to vote for your favorite law blogs in the "The ABA Journal Blawg 100": You can vote for "How Appealing" and/or its many worthy competitors in the "Generally Speaking" category via this link. Posted at 02:44 PM by Howard Bashman "Accused judge's return to bench draws protest": The Houston Chronicle provides a news update that begins, "Three generations of the family of the federal court employee who has complained that U.S. Judge Samuel Kent assaulted her turned out today on a near-freezing morning to protest his return to the federal bench. On the sidewalk outside the federal courthouse in downtown Houston, the youngest -- 14-year-old Caleb McBroom -- yelled out at passing Metro buses that Kent should be impeached for what the judge allegedly did to his mother." Posted at 02:38 PM by Howard Bashman "This case requires us to determine how the Copyright Act applies to karaoke devices that enable individuals to sing along to recordings of musical compositions": So begins a decision that the U.S. Court of Appeals for the Ninth Circuit issued today. Posted at 01:45 PM by Howard Bashman "Alan Morrison is Benched": At "The BLT: The Blog of Legal Times," Tony Mauro has a post that begins, "Veteran Supreme Court advocate Alan Morrison has been fired and apparently won't be arguing on behalf of the District of Columbia this spring in the pivotal Second Amendment gun rights case D.C. v. Heller." Posted at 11:14 AM by Howard Bashman "Death penalty ban could boost efforts across the country": The Newark (N.J.) Star-Ledger today contains an article that begins, "Opponents of the death penalty say last month's historic repeal in New Jersey could boost similar movements across the nation." Posted at 10:04 AM by Howard Bashman "Court: Quiz on Death Penalty No Mandate." The Associated Press provides a report that begins, "A judge's failure to question jurors who indicated they opposed the death penalty is not reason enough to overturn the convictions of two men in the killing of a police informant, a federal appeals court says." My earlier coverage of last Friday's Second Circuit ruling appears at this link. "A Chance to Defend Themselves": This past Sunday in The Washington Post, Thomas B. Wilner had an op-ed that begins, "The Supreme Court heard arguments this month in cases brought by detainees held at Guantanamo Bay." Posted at 09:55 AM by Howard Bashman "Louis Wolfson, Central to the Fall of a Justice, Is Dead at 95": This obituary appears today in The New York Times. Posted at 07:35 AM by Howard Bashman "Victim to Be Heard at Husband's Trial": The Associated Press provides a report that begins, "Julie Jensen will essentially testify from the grave when her husband's murder trial begins this week." Posted at 07:33 AM by Howard Bashman "Presidential candidates diverge on U.S. joining war crimes court": Bob Egelko has this article today in The San Francisco Chronicle. Posted at 07:25 AM by Howard Bashman "Ski accident snowballs into a public dispute; A 7-year-old collided with a man, 60, who is suing for more than $75,000 to cover medical bills; The elder skier faces an Internet-fueled backlash": This article appears today in The Los Angeles Times. Posted at 07:21 AM by Howard Bashman "Conservative courts likely to be Bush legacy; The president's success in getting judicial nominees confirmed gives the federal bench a decided GOP tilt": David G. Savage has this article today in The Los Angeles Times. Posted at 07:20 AM by Howard Bashman "Stonewalled by the C.I.A." Thomas H. Kean and Lee H. Hamilton have this op-ed today in The New York Times. Posted at 07:07 AM by Howard Bashman "Chief Justice Roberts Tries New Angle on Judicial Pay Raises": Jess Bravin has this post at WSJ.com's "Law Blog." Posted at 07:02 AM by Howard Bashman "Judge Wilkinson Writes Extremely Important Dissent from Denial of Rehearing En Banc in Virginia Open Primary Case": Law Professor Rick Hasen has this post at his "Election Law" blog. Posted at 06:50 AM by Howard Bashman Tuesday, January 01, 2008 "Who would Antonin Scalia torture? Next week, when the Supreme Court hears a case challenging the use of lethal injections, we may learn more about the legal limits to state-sanctioned pain." Alan Berlow has this essay online at Salon.com. Posted at 11:20 PM by Howard Bashman "In Year-End Report, Chief Justice Urges Swift Action on Judicial Pay Increases; Roberts' report also focuses on procedures for handling complaints of judicial misconduct": Tony Mauro has this article online at law.com. Posted at 11:17 PM by Howard Bashman "Same-Sex Divorce Challenges the Legal System; Most States Lack Law, Precedent To Settle Issues": This article will appear Wednesday in The Washington Post. Posted at 11:12 PM by Howard Bashman "Cranston man loses federal appeal on crack sentence": Today in The Providence (R.I.) Journal, Edward Fitzpatrick has an article that begins, "A recent U.S. Supreme Court ruling, which lets judges impose shorter prison sentences for crack-cocaine crimes, proved of no help to a Cranston man who appealed after being convicted of a crack offense and sentenced to more than 24 years behind bars." You can access last week's ruling of the U.S. Court of Appeals for the First Circuit at this link. "Time Inc to challenge Soeharto's $125 million libel win": This article appears in Wednesday's edition of The Age of Melbourne, Australia. Posted at 08:23 PM by Howard Bashman "Falling out of love with death: Though a majority of Americans back capital punishment, surveys find growing unease over it." Vince Beiser has this op-ed today in The Los Angeles Times. Posted at 08:00 PM by Howard Bashman "Pa. committed to death penalty; The state Supreme Court has affirmed four sentences; Prosecutors are trying to get executions carried out": This front page article appears today in The Philadelphia Inquirer. Posted at 07:55 PM by Howard Bashman "Public Defender Builds Injection Case": The Associated Press provides a report that begins, "One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders. David Barron, 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections across the country can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution." Posted at 07:50 PM by Howard Bashman "Okla. judge to head Denver appeals court; Clinton appointee Henry, 53, has been legislator, educator": The Associated Press provides a report that begins, "Robert Henry, of Oklahoma City, is to become chief judge of the 10th U.S. Circuit Court of Appeals in Denver today." And yesterday's edition of The Oklahoman contained an even more detailed article headlined "Judge captures top seat in federal court of appeals." My most recent earlier coverage appears at this link. "Chief Justice Again Calls for Pay Raise for Judges": Linda Greenhouse has this article today in The New York Times. Today in The Washington Post, Robert Barnes reports that "Chief Justice Argues for 'Vital Legislation' to Raise Pay for Federal Judges." And at "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "Roberts Calls on Congress to Act on Salaries." You can access the "2007 Year-End Report on the Federal Judiciary" by clicking here. "Chief Justice urges inter-branch harmony": Lyle Denniston has this post at "SCOTUSblog." And Pete Yost of The Associated Press reports that "Roberts Urges Higher Pay for Judges." Monday, December 31, 2007 "After Ruling, Groups Spend Heavily to Sway Races": Tuesday's edition of The New York Times will contain an article that begins, "Spurred by a recent Supreme Court decision, independent political groups are using their financial muscle and organizational clout as never before to influence the presidential race, pumping money and troops into early nominating states on behalf of their favored candidates." Posted at 10:40 PM by Howard Bashman "Chief justice pushes for higher salaries for federal judges": The Associated Press provides this early report on Chief Justice John G. Roberts, Jr.'s year-end report on the federal judiciary. Posted at 08:57 PM by Howard Bashman "Abrahamson talks Supreme Court campaigns, perceptions": The Associated Press provides this report on its recent interview with Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin. Posted at 08:05 PM by Howard Bashman "Court Bars Detainee Transfer to Algeria": The Associated Press provides a report that begins, "A federal appeals court Monday blocked the Bush administration from transferring a detainee at Guantanamo Bay to Algeria, where the prisoner says his life would be in danger from the government and al-Qaida. The appeals court is stopping any transfer while it considers Ahmed Belbacha's request that he not be returned to his home country." Posted at 06:04 PM by Howard Bashman In case 2007 wouldn't feel complete without at least one more precedential U.S. Court of Appeals ruling (or "All About Eve"): The U.S. Court of Appeals for the Third Circuit, which issued a precedential ruling on Christmas Eve (my post reporting on that ruling can be accessed here), has now also issued a precedential ruling on New Year's Eve. Today's decision begins, "This appeal raises an issue that we have not previously decided: what standard should be applied when analyzing a claim that a defendant has breached a plea agreement." Interestingly, the Third Circuit did not issue any precedential rulings after Christmas Eve until today. "The Chief's Year-End Report": At "The BLT: The Blog of Legal Times," Tony Mauro has a post that begins, "Tonight's the night for champagne, Auld Lang Syne -- and the chief justice's end-of-year report on the state of the federal judiciary." If earlier years are any indication, press reports on the document will begin to appear online several hours before midnight east coast time, so stay tuned! Posted at 03:11 PM by Howard Bashman You're not going anywhere: I'm pleased to announce that I have extended my current relationship with ALM's law.com for another two years. As a result, my weekly "On Appeal" column, which I began two years ago, will continue for another two years. And "How Appealing" will remain a part of the law.com blog network through at least April 20, 2010. The next installment of my "On Appeal" column will appear next Monday, when I will provide my list of the top ten appellate court rulings of 2007 (excluding U.S. Supreme Court rulings). Readers who would like to offer nominations for that list are invited to contact me via email. "Race emerges as a death penalty issue": The Kansas City Star today contains an article that begins, "Across the nation, death chambers sit idle while the U.S. Supreme Court mulls the viability of lethal injection. But it's another less-publicized death penalty issue that in the long run may prove to have a much larger impact on who dies and who decides if they should. The issue is race." Posted at 08:23 AM by Howard Bashman "Phila.'s campaign limits are upheld": The Philadelphia Inquirer today contains an article that begins, "The Pennsylvania Supreme Court has upheld Philadelphia's campaign-finance limits, a victory for reform-minded Mayor-elect Michael Nutter just days before his inauguration." And The Philadelphia Daily News reports today that "Supreme Court upholds city's law on campaign finances." Friday's ruling of the Supreme Court of Pennsylvania, which that court posted online yesterday, consists of a majority opinion and a dissenting opinion. As I wrote in this post from last night reporting on another ruling that Pennsylvania's highest court issued Friday and posted online yesterday, "In just a matter of days, three of the seven justices currently serving on Pennsylvania's highest court will be departing from that court. As a result, the court has been issuing an unusually high volume of decisions in argued cases over the past few days and weeks." "Narragansetts mull U.S. Supreme Court appeal in smokeshop case": This article appears online today at Indian Country Today. Posted at 08:17 AM by Howard Bashman "Deep divisions over US gun control; Gun control is expected to become a hot topic for the US presidential election as the Supreme Court prepares to rule on a controversial handgun ban in the nation's capital": BBC News provides this report. Posted at 08:15 AM by Howard Bashman "Robert Henry to take top spot on federal court": The Associated Press provides a report that begins, "Tenth U.S. Circuit Court of Appeals Judge Robert Henry is getting a promotion. The Shawnee, Oklahoma, native will become chief judge of the Denver-based federal court tomorrow. The cousin of Oklahoma Governor Brad Henry, Robert Henry joined the court 13 years ago." Because Circuit Judge Robert H. Henry was placed on the U.S. Court of Appeals for the Tenth Circuit by President Bill Clinton, his ascension to chief judge of that court will end the Republican appointee stranglehold on all of the Nation's federal appellate court chief judgeships that began when Alex Kozinski became chief judge of the U.S. Court of Appeals for the Ninth Circuit earlier this month. "Guantanamo Bay detainee dies of cancer; The Afghan native, 68, was accused of being a member of the Taliban; He is the prison's first inmate to die of natural causes": Carol J. Williams has this article today in The Los Angeles Times. And Carol Rosenberg of The Miami Herald has an article headlined "Pentagon: Cancer killed Guantanamo detainee." "The Challenges Alex Kozinski Faces as the New Chief Judge of the U.S. Court of Appeals for the Ninth Circuit": Carl Tobias has this essay online today at FindLaw. Posted at 06:50 AM by Howard Bashman Sunday, December 30, 2007 "In the Fight Over Piracy, a Rare Stand for Privacy": Monday's edition of The New York Times will contain this installment of Adam Liptak's "Sidebar" column. Posted at 11:50 PM by Howard Bashman "In sum, the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice." So states the opinion announcing the judgment of the court that the Supreme Court of Pennsylvania issued Friday in Eiser v. Brown & Williamson Tobacco Corp. The question presented in the case asked: "Did Appellant waive her right to appellate review by raising a quantity of issues sufficient to impair meaningful appellate review?" The decision, which the court posted online today, also consists of an opinion concurring in the judgment and two dissenting opinions (here and here). In addition, the court's Chief Justice concurred in the result without issuing an opinion. In just a matter of days, three of the seven justices currently serving on Pennsylvania's highest court will be departing from that court. As a result, the court has been issuing an unusually high volume of decisions in argued cases over the past few days and weeks. "Chipping at tough crack sentencing; Laws were ineffective and the drug's ravages overblown, experts say": Richard B. Schmitt and David G. Savage have this article today in The Los Angeles Times. Posted at 08:30 PM by Howard Bashman "Aussie Taliban Goes Free": This article appears online at Time magazine's web site. Posted at 08:14 PM by Howard Bashman "In-state tuition fight may head to high court; Controversial state law allows lower rate for some illegal immigrants": The Topeka Capital-Journal today contains an article that begins, "The fight over in-state tuition in Kansas for the children of some illegal immigrants may be headed to the U.S. Supreme Court." Posted at 02:30 PM by Howard Bashman "Malls: free speech zones; A California Supreme Court decision says malls, like parks, can't pick who protests inside." This editorial appears today in The Los Angeles Times. Posted at 02:27 PM by Howard Bashman "U.S. Supreme Court expected to make decision on Teck Cominco case soon": The Canadian Press provides this report. Posted at 02:22 PM by Howard Bashman "Kenneth Starr: Open to the public; These days, the former special prosecutor pursues service and conscience in the law." Jim Newton has this interview online today at the web site of The Los Angeles Times. Posted at 02:18 PM by Howard Bashman "High court's ruling to have lasting impact in Ohio; Law limiting money damages in pain-and-suffering lawsuits will make Ohio business-friendly, supporters say": The Dayton Daily News today contains an article that begins, "The Ohio Supreme Court's decision to uphold a law limiting the money damages that can be awarded in pain-and-suffering lawsuits could discourage people from pursuing those lawsuits and eliminate a deterrent for companies to fix defective products, trial lawyers said." Posted at 02:11 PM by Howard Bashman "Voter ID Law Heads to Supreme Court": Mark Sherman of The Associated Press has a report that begins, "The dispute over Indiana's voter identification law that is headed to the Supreme Court next week is as much a partisan political drama as a legal tussle." Posted at 02:05 PM by Howard Bashman Saturday, December 29, 2007 "Ruling Against Muslim Group Is Overturned; Former Charity, Others Not Liable in Teen's Death": This article appears today in The Washington Post. The Chicago Tribune today contains an article headlined "Terror suit award tossed out; Judge: No Hamas tie to teen slaying shown." And Reuters reports that "U.S. court overturns $156 mln award in terror case." My earlier coverage of yesterday's Seventh Circuit ruling appears at this link. "Court reverses IU teacher assistant's firing": The Pittsburgh Tribune-Review today contains an article that begins, "The Pennsylvania Supreme Court on Friday ordered a new hearing for a teacher's assistant fired in 2002 from her job in Westmoreland County for allegedly violating a district morality clause." Thursday's ruling of the Supreme Court of Pennsylvania consists of a majority opinion, a concurring opinion, and two dissenting opinions (here and here). "Drug dealer ordered to finish prison term after nine years free; Smithton man remained out of jail due to bureaucratic mistakes": This article appears today in The Pittsburgh Post-Gazette. And The Pittsburgh Tribune-Review reports today that "Rankin man jailed years after arrest must finish time." Thursday's ruling of the Supreme Court of Pennsylvania consists of a majority opinion and a concurring opinion. "High court lifts limit on OHSU liability; The move against the $200,000 cap affects state agencies and all local governments": The Oregonian today contains an article that begins, "The Oregon Supreme Court ruled Friday that the family of a brain-damaged child can pursue millions of dollars from Oregon Health & Science University, opening the door for people hurt by any public employee to seek full compensation for their injuries. The court ruled that a liability cap of $200,000 designed to protect government agencies from expensive lawsuits violates the constitutional rights of Jordaan Michael Clarke, 9, who suffered permanent brain damage in 1998 while in intensive care at OHSU Hospital." The newspaper also reports today that "Ruling will force cuts in programs." And The Statesman Journal of Salem, Oregon reports today that "Government liability cap is overruled; Public agencies, and taxpayers, may face more expensive lawsuits." You can access yesterday's ruling of the Supreme Court of Oregon at this link. "A Texas tale: Oil, business meet history, sabotage; Historic family, Exxon, small producer wage legal war fueled by old wells." Chuck Lindell will have this article Sunday in The Austin American-Statesman. Posted at 10:55 PM by Howard Bashman "Pentagon sends 10 Saudis home from Gitmo": Today in The Miami Herald, Carol Rosenberg has an article that begins, "The Pentagon has downsized the detainee population at Guantanamo again -- announcing Friday evening that it had sent 10 presumably long-held captives home to Saudi Arabia." Posted at 10:50 PM by Howard Bashman "Upcoming Supreme Court Case Could Redefine Patent Exhaustion": Dow Jones Newswires provide this report. Posted at 10:37 PM by Howard Bashman "After 7-Year Custody Fight, Family to Return to China; Faced With Deportation, Anna Mae He and Her Parents Plan to Return to China": ABCNews.com provides this report. The Associated Press reports that "Girl in Custody Fight Headed to China." And earlier this month, The Commercial Appeal of Memphis published articles headlined "Faced with deportation, the He family heading back to homeland" and "Anna He absorbing Chinese culture, adjusting to a different world with her family." "Supreme Court's clerks find Indian law unimportant": Matthew L.M. Fletcher has this essay online at Indian Country Today. Posted at 10:30 PM by Howard Bashman "More Power for Executive: Will It Last?" Adam Liptak will have this article Sunday in The New York Times. Posted at 10:28 PM by Howard Bashman "Tapes by C.I.A. Lived and Died to Save Image": This article will appear Sunday in The New York Times. Posted at 10:27 PM by Howard Bashman "Feds plan to drop 43 counts in Wecht fraud case": The Pittsburgh Post-Gazette today contains an article that begins, "Less than two weeks before jury selection is scheduled to begin, federal prosecutors late yesterday filed a motion to dismiss 43 of the criminal counts against former Allegheny County Coroner Dr. Cyril H. Wecht. That motion came on the same day that defense attorneys filed a second petition with the 3rd U.S. Circuit Court of Appeals asking that the judge overseeing the case be removed." And The Pittsburgh Tribune-Review reports today that "Prosecutor cuts Wecht case in half." "Pa. court upholds church-state case; It said Phila. was within the law in condemning private land for a Catholic educational project": Today's edition of The Philadelphia Inquirer contains an article that begins, "In Pennsylvania, it is now legal in some cases to condemn blighted private property and turn it over to a religious organization, the state Supreme Court ruled this week. The case, which blended the hot-button issues of eminent domain and separation of church and state, revolved around a North Philadelphia neighborhood that the city certified as blighted 36 years ago." Thursday's ruling of the Supreme Court of Pennsylvania consists of a majority opinion and a dissenting opinion. "Court orders judge to reconsider ruling on deaf truck drivers": Bob Egelko has this article today in The San Francisco Chronicle. My earlier coverage of yesterday's en banc Ninth Circuit ruling appears at this link. Friday, December 28, 2007 "Lacking lawyers, justice is denied; Attorneys often avoid medical malpractice suits because California limits 'pain and suffering' awards to $250,000": Saturday's edition of The Los Angeles Times will contain this article. Posted at 11:57 PM by Howard Bashman "Caps on personal-injury damages upheld by Ohio Supreme Court; Business group applauds ruling": This article appears today in The Cleveland Plain Dealer. The Toledo Blade reports today that "Limits on damages for pain are upheld by Ohio Supreme Court; Court affirms 2004 law." The Columbus Dispatch reports that "Cap on lawsuit damages upheld; Right to a jury trial does not rule out $350,000 limit." And The Cincinnati Enquirer reports that "Court upholds cap on damages; Max for pain and suffering is $350,000." My earlier coverage of yesterday's ruling of the Supreme Court of Ohio appears at this link. Available online from law.com: Tony Mauro reports that "Small Firm Business Attorney Tapped to Argue High Court Lethal-Injection Case; Choice of veteran Supreme Court advocate reflects trend by states." And in other news, "9th Circuit Switches Gears on UPS Drivers in Closely Watched Class Action; 15-judge panel comes up with a new 'business necessity' standard for employers faced with ADA litigation." My earlier coverage of today's en banc Ninth Circuit ruling appears at this link. Jurisprudence essays available online at Slate: Dahlia Lithwick has an essay entitled "Legal Fictions: The Bush administration's dumbest legal arguments of the year." And Niko Karvounis has an essay entitled "Capital Opportunity: Democrats could safely champion death-penalty reform--why aren't they?" "Hicks released from Yatala - but it's freedom at a price": The Advertiser of Adelaide, Australia provides a news update that begins, "Confessed terrorism supporter David Hicks has been released from an Adelaide jail - but has left dealing with the media to his father and lawyer. The 32-year-old walked out of the Yatala prison in Adelaide's north at 8.17am. Hicks has been in custody since being captured among Taliban forces in Afghanistan, in December 2001." And The Associated Press reports that "Australian Guantanamo Convict Released." It's not every day that you see an opinion involving a conviction for possession of child pornography where the images in question were created by the "victim" at the victim's suggestion and then sold by the victim to the defendant in a transaction the victim proposed: A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued this ruling today. These facts, among others, explain why the appellate court in this decision affirms a sentence that is substantially below the applicable Sentencing Guidelines range. Posted at 05:12 PM by Howard Bashman "Even litigation spawning multiple Roman numeral suffixes must come to an end." If today's ruling of the U.S. Court of Appeals for the Fourth Circuit in Doe v. Chao marks the end of that case, the litigation will have concluded at Doe VII. Posted at 04:55 PM by Howard Bashman Second Circuit rejects challenges to the use of an anonymous jury and the removal for cause of certain jurors opposed to the death penalty based only on responses to a written questionnaire in a case where the death-qualified jury ended up imposing a life sentence: You can access today's lengthy ruling of the U.S. Court of Appeals for the Second Circuit at this link. Posted at 04:00 PM by Howard Bashman "$156M Terrorism Damage Award Thrown Out": The Associated Press provides this report. And the Anti-Defamation League has issued a press release entitled "ADL Disappointed With Overturn of Landmark Anti-Terrorism Judgment." My earlier coverage of today's Seventh Circuit ruling appears at this link. You can access via this link the briefs filed on appeal. The case was orally argued a little over two years ago, and you can download the oral argument audio in three parts via this link. Fifteen-judge en banc Ninth Circuit panel sets aside injunction that would have required United Parcel Service to hire hearing-impaired drivers to operate local delivery vans: You can access today's en banc ruling at this link. In October 2006, a unanimous three-judge Ninth Circuit panel had affirmed the injunction, holding that the company's refusal to hire the hearing-impaired to make local deliveries violated the Americans with Disabilities Act. In covering that ruling, Bob Egelko of The San Francisco Chronicle had an article headlined "Deaf drivers due a chance at UPS jobs, court says; Some may be as safe as rivals with normal hearing, ruling holds." Partially divided three-judge Seventh Circuit panel sets aside $156 million judgment awarded to parents of teenager randomly shot to death in Israel by gunmen believed to be acting on behalf of the terrorist organization Hamas: You can access today's 102-page ruling at this link. The majority has ruled that the federal district court erred in holding that the defendants were liable on plaintiffs' motion for summary judgment. The end result is that the case is remanded for further proceedings. Before summarizing its holdings, the majority opinion concludes: Belief, assumption, and speculation are no substitutes for evidence in a court of law. However the plaintiffs might establish a line of proof connecting the defendants with the murder of David Boim, the law demands that they demonstrate such a nexus before any defendant may be held liable for David's death. We must resist the temptation to gloss over error, admit spurious evidence, and assume facts not adequately proved simply to side with the face of innocence and against the face of terrorism. Our endeavor to adhere to the dictates of law that this great nation has embodied since its founding must persevere, no matter how great our desire to hold someone accountable for the unspeakably evil acts that ended David Boim's life and created a lifetime of grief not only for the Boims but also for every other family scarred by terrorism.Circuit Judge Ilana Diamond Rovner wrote the majority opinion, in which Circuit Judge Diane P. Wood joined. In his opinion concurring in part and dissenting in part, Circuit Judge Terence T. Evans explains that he would have affirmed the district court's judgment except as to one defedant. Update: Coincidentally, earlier this month the publication Washington Jewish Week published an article headlined "Lewin and Lewin make their mark." According to the article, "The Lewins currently represent the American Israel Public Affairs Committee and are working on a number of other Jewish-related cases, such as the Boim case, in which, on behalf of a victim of a Hamas terrorist attack in Israel, they successfully sued the Holy Land Foundation and two other U.S. charities for providing funding to the terrorist organization. They are waiting for the results of an appeal, but the legal theory they developed has been adopted by a number of other terror victims since." "Galle on 'The Tax Law Made Me Crazy' Defense Approved by the 9th Circuit in Cohen": This post appears today at "TaxProf Blog." My earlier coverage of Wednesday's Ninth Circuit ruling appears at this link. Part man, part beast: In case you are concerned that today's ruling of the U.S. Court of Appeals for the D.C. Circuit involving xenotransplantation -- which the opinion describes as "a relatively new procedure whereby animal organs or tissues are transplanted to the human body" -- would be too fascinating to pass-up, do not despair. In fact, all that the decision addresses is whether the organization known as Campaign for Responsible Transplantation (whose web site features this lovely image) is entitled to recover attorneys' fees from the Food and Drug Administration pursuant to the Freedom of Information Act. Nevertheless, please do keep xenotransplantation in mind the next time you sit down to play Scrabble. You can access many of the trial court filings in the case via this link. Supreme Court of Pennsylvania grants review to decide "[w]hether accessing and viewing child pornography over the internet constitutes 'control' of such pornography under 18 Pa.C.S. sec. 6312(d)": You can access Monday's order of Pennsylvania's highest court at this link. The case in which review was granted is captioned Commonwealth v. Diodoro. In November 2006, I had this post reporting on the decision of a unanimous three-judge panel of the Superior Court of Pennsylvania setting aside the defendant's conviction. In December 2006, I criticized that decision in an installment of my weekly "On Appeal" column headlined "Just Looking: Should Internet Ignorance Be a Defense to Child Porn Charges?" Thereafter, the Pa. Superior Court granted reargument en banc. Next, in August 2007, a nine-judge en banc panel of the Pa. Superior Court affirmed the defendant's conviction by means of a 7-2 ruling that you can access here. And now the Pa. Supreme Court has agreed to have the final word on the matter. "Guantanamo Terror Convict to Be Set Free": The Associated Press provides a report that begins, "Convicted terror supporter David Hicks was due to walk free Saturday after more than six years of captivity in Guantanamo Bay and Australia, but will face strict controls on his movements after a court found he was still a security risk." Posted at 07:30 AM by Howard Bashman "Entertainer and Fighter Is Clemens's Lead Lawyer": This profile of attorney Rusty Hardin appears today in The New York Times. The article notes that Hardin also represents the woman who is accusing U.S. District Judge Samuel B. Kent of sexual assault. Posted at 07:25 AM by Howard Bashman "Protection and Pay for Federal Judges": The New York Times contains this editorial today. Posted at 07:20 AM by Howard Bashman "Affirmative action may be on ballots; Campaign in five states seeks end of preferences": This front page article appears today in USA Today. Posted at 07:11 AM by Howard Bashman Thursday, December 27, 2007 "S-R loses court battle over school records": The Spokesman-Review of Spokane, Washington provides a news update that begins, "The Washington Supreme Court sided Thursday with Spokane Public Schools in a six-year legal battle with The Spokesman-Review over access to witness accounts of the events that led to the death of a third grader on a school field trip in 2001. The 5-4 ruling upholds the school districtโs decision to withhold public documents when it assumed a wrongful death lawsuit was likely." And The Associated Press reports that "High court shields attorney-client records; State's justices rule out releasing documents regarding child's death." My earlier coverage appears at this link. Available online from law.com: Tony Mauro has an article headlined "A Historic Find Behind a Supreme Court Filing Cabinet; A copy of the Declaration of Independence sat forgotten at the high court; Now it's cleaned up and on display." And a newsbrief reports that "Airline Industry to Appeal 'Passenger Bill of Rights' Ruling." My earlier coverage appears at this link. "Iowa appeals videotape evidence case to U.S. Supreme Court": The Associated Press provides a report that begins, "Iowa's attorney general has asked the U.S. Supreme Court to review an Iowa Supreme Court ruling prohibiting the use of videotaped testimony in a child sexual abuse case against a man whose brother killed the child." And Radio Iowa News reports that "Iowa Attorney General asks for U.S. Supreme Court review of Bentley ruling." "SF appeals to court to allow health coverage plan to proceed": Bob Egelko of The San Francisco Chronicle provides a news update that begins, "San Francisco asked a federal appeals court this morning to let the city extend health coverage to all uninsured adult residents next week, despite a federal judge's ruling that struck down a key provision requiring employers to pay part of the cost." Posted at 11:40 PM by Howard Bashman "Plaintiffsโ lawyers blast Exxon brief to high court": This article appeared last week in The Kodiak Daily Mirror. Posted at 11:38 PM by Howard Bashman Credit reporting service that failed to correct the credit report of a woman who was the victim of identity theft remains liable to pay six-figure judgment on woman's claims for economic loss and emotional distress: A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued this ruling today. Defendant Equifax did succeed in setting aside an attorneys' fee award of $181,083 in the woman's favor, although the district court will be able to reconsider what amount of attorneys' fees to award on remand. And if the woman is dissatisfied with the Fourth Circuit's remittitur of the jury's $245,000 mental anguish award to $150,000, she has the ability to elect a new trial. Posted at 04:20 PM by Howard Bashman "In a first for any federal court, my colleagues hold that a foreign company that has no United States employees, locations, or business activities must produce a designee to testify at a deposition in the Eastern District of Virginia so long as it has applied for trademark registration with a government office located there." So begins a dissent that Circuit Judge J. Harvie Wilkinson III issued today from a ruling of a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit. The case arises from a Portuguese company's effort to obtain a United States trademark registration of the mark VIRGIN GORDA. Opposing the registration of that mark is Virgin Enterprises Ltd., a conglomerate that operates businesses such as Virgin Atlantic Airways, Virgin Records, Virgin Mobile, Virgin Wines, and Virgin Digital. "Ohio Supreme Court upholds law limiting punitive damages": The Columbus Dispatch provides a news update that begins, "A Republican-sponsored law to limit the amount of punitive damages people can collect for defective products or malpractice does not violate the Ohio Constitution, the state Supreme Court ruled today. In a 5-2 decision, the court said lawmakers didn't overstep their bounds when they capped non-economic damages at $350,000 per person and $500,000 per incident in 2005." The Toledo Blade provides a news update headlined "Ohio Supreme Court upholds law that puts cap on personal injury damages." The Cleveland Plain Dealer provides a news update headlined "Ohio personal injury caps upheld." The Cincinnati Enquirer provides a news update headlined "Lawsuit limits upheld." And The Associated Press reports that "Ohio Supreme Court Upholds Damages Law." You can access today's ruling of the Supreme Court of Ohio at this link. And the court's Public Information Office issued a news release headlined "Court Upholds Two Tort-Reform Statutes." "KOZINSKI, Chief Judge, dissenting for the most part:" So begins Chief Judge Alex Kozinski's opinion "dissenting for the most part" from a ruling that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today. A search of Westlaw's CTA database discloses that today is not the first time Kozinski has dissented "for the most part." He also did it once in 1992 and once earlier this year. Thus far, the characterization hasn't caught on with any other federal appellate judges, as there are no other recorded use of the "dissenting for the most part" language in any other federal appellate court rulings available in that database. "Nine-year-old Nathan Walters died after ingesting part of a peanut butter cookie, which was served to him in a school lunch on a school field trip." So begins the majority opinion in today's 5-4 ruling of the Supreme Court of the State of Washington in Soter v. Cowles Publishing Co. Today's decision also includes a concurring opinion and a dissenting opinion. At issue on appeal is whether the school district properly declined to release 75 documents relating to the child's food allergy-related death after The Spokesman-Review newspaper sought access to the documents under Washington State's Public Records Act. The majority holds that the documents were properly withheld from the newspaper. The dissenting opinion, in which four justices have joined, disagrees, stating: "The majority essentially creates a public nondisclosure act, turning the act inside out so that documents are withheld from the public unless the public can demonstrate that no remotely connected litigation exists, past, present, or future." "A Court in Need: The Senate should act on nominations to the U.S. Court of Appeals for the 4th Circuit." This editorial appears today in The Washington Post. Posted at 08:56 AM by Howard Bashman "KU graduate to clerk for Supreme Court": The Topeka Capital-Journal today contains an article that begins, "A 2003 University of Kansas graduate who earned a law degree this spring at Stanford University in Palo Alto, Calif., is the second Kansan recently selected for a U.S. Supreme Court clerkship in the 2008 term. Jameson Reece Jones, of Wichita, who earned degrees in American studies and civil engineering at KU, will clerk for Supreme Court Justice Antonin Scalia during the 2008-09 term. Jones currently is a clerk for Judge Jeffrey S. Sutton, of the Sixth U.S. Circuit Court, in Columbus, Ohio." And the University of Kansas yesterday issued a press release entitled "2003 KU graduate selected to clerk for U.S. Supreme Court." "Strip clubs fighting $5 fee focus on tax argument, not First Amendment; Fee goes into effect Tuesday": This article appears today in The Austin American-Statesman. Posted at 08:44 AM by Howard Bashman "A Colony With a Conscience": Today in The New York Times, Kenneth T. Jackson has this op-ed about the Flushing Remonstrance. Posted at 08:34 AM by Howard Bashman "Google to Face Suit Over AutoLink Patents, Court Says": Bloomberg News provides a report that begins, "Google Inc., owner of the most-used Internet search engine, must face a Wisconsin company's lawsuit over a toolbar feature that generates Web links from computer-search data, a federal appeals court decided." You can access yesterday's non-precedential ruling of the U.S. Court of Appeals for the Federal Circuit at this link. "State Without Pity": The New York Times today contains an editorial that begins, "It is a shameful distinction, but Texas is the undisputed capital of capital punishment." Posted at 07:40 AM by Howard Bashman "U.S. Prevails in Tax-Shelter Battle; 'Son of Boss' Court Ruling Could Be Used To Pressure Other Taxpayers to Settle": This article appears today in The Wall Street Journal. And The New York Times reports today that "Judge Hands I.R.S. Victory in Tax Shelter." "TaxProf Blog" reports on and links to last Friday's ruling of the U.S. Court of Federal Claims. "Convicted Felon Tests Second Amendment": Joseph Goldstein has this article today in The New York Sun. Posted at 07:08 AM by Howard Bashman Wednesday, December 26, 2007 "Mom Serving 19 Years in Crack Case May Get Break": This audio segment (RealPlayer required) appeared on this evening's broadcast of NPR's "All Things Considered." Posted at 11:03 PM by Howard Bashman "The Score was Justice 7, Law 2": The latest installment of James J. Kilpatrick's syndicated column begins, "When the dust settled over the Supreme Court's most recent opinion day, the box score in Gall v. United States read 7-2 for Brian Gall. Put another way, the court cast seven votes for justice, two votes for law. You decide." Posted at 10:54 PM by Howard Bashman Available online from law.com: Shannon P. Duffy reports that "Splenda Gets Partial Win in Ruling by 3rd Circuit." My earlier coverage of Monday's Third Circuit ruling appears at this link. And an article headlined "Libeled Judge Faces Reprimand" begins, "The Massachusetts Commission on Judicial Conduct has scheduled a Jan. 8 hearing about its recommendation to publicly reprimand state court Judge Ernest B. Murphy for improper letters to Boston Herald publisher Patrick J. Purcell concerning Murphy's libel lawsuit against the newspaper." "Number of Supreme Justices Increase to 14": The Korea Times provides this report. Posted at 09:42 PM by Howard Bashman "Historian James MacGregor Burns tackles Supreme Court": The Associated Press provides this report. Posted at 09:40 PM by Howard Bashman "Gun Seized After Katrina? NRA Wants You." The Associated Press provides a report that begins, "The National Rifle Association has hired private investigators to find hundreds of people whose firearms were seized by city police in the aftermath of Hurricane Katrina, according to court papers filed this week. The NRA is trying to locate gun owners for a federal lawsuit that the lobbying group filed against Mayor Ray Nagin and Police Superintendent Warren Riley over the city's seizure of firearms after the Aug. 29, 2005, hurricane." Posted at 09:25 PM by Howard Bashman Does a federal district court abuse its discretion if it rejects a criminal plea agreement on the basis of evidence that has not been disclosed to the defendant? A unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit narrowly avoids having to decide the answer to that difficult question in this decision issued today. The prosecution arose after an Assistant U.S. Attorney received a threatening letter referring to a case on which she was working. Posted at 09:14 PM by Howard Bashman "Dress code suit costs couple $40,931.50; Anderson plaintiffs' predicament illustrates the risks of being your own lawyer": Monday's edition of The Indianapolis Star contained an article that begins, "Laura and Scott Bell took on their school district's new dress code, but their lawsuit was booted from court after they missed critical deadlines and pressed claims that a judge deemed frivolous. Four months later, the judge has ordered them to pay up for the trouble. The Bells now are on the hook for $40,931.50, the amount Anderson Community Schools said its law firm charged for fending off the couple's lawsuit in July and August. The couple represented themselves in court. U.S. District Judge John D. Tinder's decision underlines the risk of wading into legal waters without a lawyer. The danger is higher in litigation, where paying the winning side's attorney fees is common." "The Indiana Law Blog" links to the federal district court's attorneys' fee ruling at the conclusion of this post from Monday. "IRS Issues 70-Page Memo Debunking Tax Protester Arguments": On Sunday, "TaxProf Blog" had this post linking to a 70-page memorandum titled "The Truth about Frivolous Tax Arguments" that the Internal Revenue Service issued last Friday. Just when you think that matters can't get any worse for tax protesters, they actually don't get any worse for once. Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision granting a new trial on criminal charges against Lawrence Cohen, whom the opinion describes as an "acolyte" of "well-known recidivist tax protestor Irwin Schiff." The basis for the ruling is that the district court wrongly excluded the expert testimony of Cohen's psychiatrist, who would have offered evidence relevant to Cohen's mental state. Today's Ninth Circuit ruling also vacates fifteen criminal contempt convictions that the federal district judge summarily imposed on Schiff based on Schiff's unruly courtroom behavior. Unfortunately for Schiff, the criminal contempt convictions were set aside due to a procedural flaw that the Ninth Circuit is allowing the district court to cure on remand. Majority on 15-judge Ninth Circuit en banc panel corrects what it describes as that court's earlier misconstruction of the Schlup v. Delo "actual innocence" "gateway": Nine judges join in the lead opinion, four other judges join in an opinion concurring in the result, and two judges dissent. You can access the four opinions that today's en banc ruling has generated by clicking here. You can access the original three-judge Ninth Circuit panel's ruling, which produced the grant of rehearing en banc, by clicking here. And the briefs that caused the Ninth Circuit to take the case en banc can be accessed at this link. "Investigating the Destroyed CIA Videotapes": This audio segment (RealPlayer required) appeared on Monday's broadcast of NPR's "Talk of the Nation." Posted at 11:57 AM by Howard Bashman "Liability waivers at winter resorts have legal teeth": Geoffrey Fattah has this article today in The Deseret Morning News. Posted at 08:37 AM by Howard Bashman "State court puts limits on health insurers' policy cancellations": Bob Egelko has this article today in The San Francisco Chronicle. My earlier coverage of Monday's ruling of the California Court of Appeal for the Fourth Appellate District, Division Three, appears at this link. "Adjusted Penalties for Crack May Aid Ex-Ballplayer's Case": The Washington Post today contains an article that begins, "Willie Mays Aikens is a part of baseball lore. As a member of the 1980 Kansas City Royals, he became the only man to hit more than one home run in two games of the same World Series. But 27 years after his feat, Aikens languishes in a federal prison in Jessup, Ga., brought low by cocaine addiction and a federal law that mandated long prison sentences for crack cocaine offenses. From a face on a baseball card, Aikens is now a poster child for what some jurists and civil rights activists say is the absurdity of the difference between the way federal law treats people convicted of crack cocaine offenses and those found guilty of crimes involving powder cocaine." You can access his Major League Baseball statistics via Baseball-Reference.com. And in the June 7, 2007 issue of The Los Angeles Times, Margaret Colgate Love had a related op-ed headlined "Begging Bush's pardon." "Stephen Radich, Owner of Controversial Art Gallery, Is Dead at 85": The New York Times today contains an obituary that begins, "Stephen Radich, a New York art gallery owner who became embroiled in a famous legal case involving flag desecration in the late 1960s, died on Dec. 18. He was 85, and lived in New York." According to the obituary, "After losing in New York, Mr. Radich appealed to the United States Supreme Court, which, in 1971, voted on the case 4 to 4, with Justice William O. Douglas not voting. Then the Circuit Court of Appeals ruled that a tie vote did not represent an actual adjudication, thereby allowing for yet another appeal. Finally, in 1974, a federal judge overturned the conviction." "The Work Remaining": The New York Times today contains an editorial that begins, "It has been nearly a year since the United States attorneys scandal broke, and much has changed." Posted at 07:52 AM by Howard Bashman "Guitar-Strumming Attorney Sets Legal Parodies to Music": This article appears today in The New York Sun. Posted at 07:44 AM by Howard Bashman "DOJ's Free Pass for Tort Fraud": Law Professor Lester Brickman has this op-ed today in The Wall Street Journal. Posted at 06:54 AM by Howard Bashman "Is the Nighttime the Wrong Time for Searching Houses?: The Supreme Court of Minnesota Reads the U.S. Constitution to Say Yes." Sherry F. Colb has this essay online today at FindLaw. Posted at 06:44 AM by Howard Bashman Tuesday, December 25, 2007 "Justices strike a balance; Pals Ginsburg, Scalia ring in the new year, then duke it out in court": Joan Biskupic will have this article Wednesday in USA Today. Posted at 10:58 PM by Howard Bashman "Club seeks US Supreme Court help in nude-dancing fight": This article appeared yesterday in The News-Journal of Daytona Beach, Florida. Posted at 10:55 PM by Howard Bashman "Texas is Bucking Execution Trend": Adam Liptak will have this article Wednesday in The New York Times. The Washington Post on Wednesday will contain an article headlined "Repeal of Md. Death Penalty Still Seems Out of Reach; Activists Encouraged by New Jersey, but Key Senate Panel Remains in the Way." And from Nebraska, The Associated Press provides a report headlined "Senator: Next year could be 'best chance' to repeal death penalty." "Court: Reporter Need Not Turn Over Notes." The Associated Press provides a report that begins, "An appeals court on Monday struck down a ruling ordering a reporter to give prosecutors unpublished notes from an interview with a man who shot two police officers before killing himself." And The Free Press of Mankato, Minnesota reports that "Free Press wins Amboy shooting case; Appeals Court rules prosecutors didn't meet standards." You can access yesterday's ruling of the Court of Appeals of Minnesota at this link. "Partisan Fissures Over Voter ID; Justices to Hear Challenge to Law": Robert Barnes has this front page article today in The Washington Post. Posted at 11:28 AM by Howard Bashman "Court curbs insurers' ability to rescind medical policies; A ruling restricts the ability of California health plans to cancel coverage after patients run up medical bills": The Los Angeles Times today contains an article that begins, "California health insurers have a duty to check the accuracy of applications for coverage before issuing policies -- and should not wait until patients run up big medical bills, a state appeals court ruled Monday. The court also said insurers could not cancel a medical policy unless they showed that the policyholder willfully misrepresented his health or that the company had investigated the application before it issued coverage." You can access yesterday's ruling of the California Court of Appeal for the Fourth Appellate District, Division Three, at this link. "Court allows free speech on private-property malls; Case about protest at Fashion Valley": Greg Moran has this article today in The San Diego Union-Tribune. Today in The San Francisco Chronicle, Bob Egelko reports that "California's top court curbs malls seeking to limit boycotts." The Los Angeles Times reports that "Court upholds protest at mall; Justices split 4 to 3 in opposing rules based on the content of a union's protected free speech." And The New York Times reports that "Court Ruling on Protests Curbs Malls in California." You can access yesterday's ruling of the Supreme Court of California at this link. Monday, December 24, 2007 "State Supreme Court dismisses libel suit brought by a San Francisco rabbi": Bob Egelko of The San Francisco Chronicle provides this news update. And Bay City News reports that "Libel Lawsuit By SF's Hebrew Academy Rejected." My earlier coverage of today's ruling of the Supreme Court of California appears at this link. "Mall boycott leaflets are protected free speech, California high court rules": Bay City News Service provides this report. And The Associated Press provides a report headlined "Court: Malls can't bar protesters from boycotting stores." My earlier coverage of today's ruling of the Supreme Court of California appears at this link. Supreme Court of California holds that the "single-publication rule" for determining when the statute of limitations begins to run on a defamation claim arising from a publication with widespread distribution also applies to a defamation claim arising from a publication that is not widely distributed: You can access today's ruling from California's highest court at this link. Posted at 04:07 PM by Howard Bashman "Political leafleting at malls upheld": Bob Egelko of The San Francisco Chronicle provides a news update that begins, "A deeply divided California Supreme Court today upheld the right of unions and political protesters to leaflet shoppers at malls and urge a boycott. The 4-3 decision was based on the court's landmark 1979 ruling that allowed political leafleting at large shopping centers under the state constitutional right of free speech. The court said in that ruling that a shopping mall was the modern equivalent of a town square or community meeting place, where people come to exchange ideas as well as spend money. The U.S. Supreme Court later ruled that the constitutional right of free speech applies only to restrictions imposed by the government and not by private property owners. But the 1979 ruling remains the law in California." And Central Valley Business Times reports that "Malls may not regulate content of free speech, says California Supreme Court." You can access today's ruling of the Supreme Court of California at this link. The case reached California's highest court on certified question from the U.S. Court of Appeals for the D.C. Circuit. "This appeal requires us to decide when the trade dress on the packaging of store-brand products is so similar to that of directly competing national-brand products as to create a likelihood of confusion among consumers." So begins a 40-page ruling that a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued today. The case involves claims that store-brand sucralose is being packaged in a way that looks too much like the packaging used by the brand Splenda. Posted at 03:44 PM by Howard Bashman  
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