How Appealing

Thursday, February 07, 2008

The Associated Press is reporting: An article headlined "House, Senate Members Back DC Gun Owners" begins, "Bipartisan majorities in both the House and the Senate are backing gun owners in a landmark Supreme Court case."

An article headlined "Commuting of Va. Death Sentence Delayed" begins, "A man in the center of a case that led to the U.S. Supreme Court banning execution of the mentally retarded will remain on death row for now. A judge Thursday agreed to a request by special prosecutors to stay his order to commute Daryl Atkins' sentence to life in prison while they appeal the ruling to the Virginia Supreme Court."

And an article about Salim Ahmed Hamdan is headlined "Lawyers: Gitmo Detainee Breaking Down."
Posted at 03:40 PM by Howard Bashman

"Attorney general: No waterboarding investigation." CNN.com provides this report.

And The Associated Press provides a report headlined "CIA Boss: Waterboarding May Be Illegal."
Posted at 03:34 PM by Howard Bashman

Eighth Circuit holds that federal district court may, if it so desires, reconsider sentence imposed on two men for crack cocaine-related crimes in light of crack cocaine-powder cocaine sentencing disparities: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.

Despite ordering a remand to allow the district court to exercise a power that the district court did not recognize it possessed when it imposed the sentences in question, today's Eighth Circuit ruling goes on to explain: "We do not believe, though, that Kimbrough means that a district court now acts unreasonably, abuses its discretion, or otherwise commits error if it does not consider the crack/powder sentencing disparity."
Posted at 11:50 AM by Howard Bashman

En banc Sixth Circuit issues decision addressing "reasonableness" review of criminal sentence imposed under federal Sentencing Guidelines: The court splits 9-6 over the outcome, and one of the three dissenting opinions cites U.S. District Judge Richard G. Kopf's blog-based "top ten" list.
Posted at 10:12 AM by Howard Bashman

"Warring sides in same-sex marriage debate look to court date": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The California Supreme Court scheduled a March 4 hearing Wednesday for the long-awaited clash between gay-rights advocates, the state and religious conservatives over the constitutionality of banning same-sex marriage."
Posted at 09:55 AM by Howard Bashman

"Crack-Sentencing Reductions Decried; Mukasey: Gang Members Would Be Let Go." This article appears today in The Washington Post.
Posted at 09:54 AM by Howard Bashman

"Anti-Clinton film backers take on campaign-funding law; Activists, in appeal to Supreme Court, say TV ads promoting 'Hillary: The Movie' are covered by free speech." David G. Savage has this article today in The Los Angeles Times.
Posted at 09:48 AM by Howard Bashman

"Clarity Sought on Electronics Searches; Travelers' Devices Seized at Border": This front page article appears today in The Washington Post.
Posted at 09:36 AM by Howard Bashman

"White House Defends CIA's Use Of Waterboarding in Interrogations": Dan Eggen has this article today in The Washington Post.

The Los Angeles Times reports today that "Waterboarding is legal, White House says; The assertion stuns critics and revives debate over the widely condemned interrogation technique."

And The Boston Globe contains an editorial entitled "The CIA's criminal admission."
Posted at 09:34 AM by Howard Bashman

"Court Panel Questions School Ban on Phones": The New York Times today contains an article that begins, "Most of the judges on a state appellate court panel seemed to be sympathetic on Wednesday to arguments by parents that a ban on cellphones in New York City schools trampled on their right to make decisions about the safety of their children. During a hearing in Manhattan on the constitutionality of the ban, the five judges indicated that they were looking for a compromise policy."

The New York Daily News reports today that "School cell ban fight back in court."

The New York Sun reports that "Parents Ask for School Cell Phone Ban To Be Lifted."

And The Associated Press reports that "NYC parents take school cell phone fight to appeals court."
Posted at 09:30 AM by Howard Bashman

"Justice attorneys may have known CIA had destroyed tapes; Federal court documents show that prosecutors had been informed of the destruction of the interrogation videos": This article appears today in The Los Angeles Times.

The New York Times reports today that "C.I.A. Destroyed Tapes as Judge Sought Interrogation Data."

ABCNews.com reports that "Terrorist's Appeal Uncovers CIA Tape Info; Documents in Moussaoui Case Show How Much Government Knew of Interrogation Tapes."

And The Associated Press reports that "Prosecutor May Have Known of CIA Tapes."

The relevant filings that the U.S. Court of Appeals for the Fourth Circuit unsealed yesterday in redacted form consist of: (1) Moussaoui's motion for a limited remand; (2) the federal government's brief in opposition thereto; (3) Moussaoui's reply brief in support of his motion for a limited remand; (4) a supplemental letter from the federal government; and (5) Moussaoui's supplemental response. The fourth and fifth items on this list appear to be particularly relevant to the news articles linked above.

Another motion that Moussaoui's appellate lawyers have recently filed, and that the Fourth Circuit unsealed in redacted form yesterday, points out that those lawyers are greatly restricted in their ability to discuss the case with their client.
Posted at 09:15 AM by Howard Bashman

"SJC blasts 2 lawyers for ethics breach; Disbarment caps long-running case": Today's edition of The Boston Globe contains an article that begins, "The state's highest court ordered the disbarment of two Boston lawyers yesterday for crossing ethical boundaries in the Demoulas supermarket family feud in the 1990s, issuing the harshest possible ruling in what is probably the final chapter of the long-running case. In a unanimous ruling, the Supreme Judicial Court said Gary C. Crossen, a prominent lawyer and former adviser to Republican governors, and Kevin P. Curry, a longtime defense attorney, shamed themselves and the legal profession. The two men were trying to prove that the Superior Court judge on the case was biased and committed misconduct."

You can access here and here yesterday's rulings of the Supreme Judicial Court of Massachusetts in this matter.
Posted at 08:37 AM by Howard Bashman

"Gravel's justice of choice: Akhil Amar; Constitutional law scholar says he is not quitting his 'day job' for seat on Court." The Yale Daily News today contains an article that begins, "Democratic presidential candidate Mike Gravel, currently polling at 0 percent, will probably never have an opportunity to nominate a Supreme Court justice. But if he has the chance, the former Alaska senator says he has already made up his mind. His man: Yale Law School professor Akhil Reed Amar '80 LAW '84."
Posted at 08:25 AM by Howard Bashman

"Wecht's private correspondence handled on county time, aide says": This article appears today in The Pittsburgh Post-Gazette.

And today in The Pittsburgh Tribune-Review, Jason Cato has an article headlined "Coroner's 'invoices' bogus: witness."
Posted at 08:23 AM by Howard Bashman

"Criminals get a break on fines; Court rules that many penalties don't have to be paid": Today in The Austin American-Statesman, Chuck Lindell has an article that begins, "Since the mid-1970s, Texas courts have fined criminals the old-fashioned way: If there were 10 criminal counts, there could be 10 separate fines, and together they added up to some potentially large penalties. That formula changed Wednesday when the Texas Court of Criminal Appeals ruled that many court fines must now run concurrently instead of consecutively, much the same way many prison terms must be served at the same time instead of being stacked one after the other. Under the 5-4 ruling, a defendant pays the largest fine assessed by a court, and then every other fine is considered paid in full, providing a substantial reduction in a criminal's debt to society."

Yesterday's ruling of the Texas Court of Criminal Appeals in State v. Crook consists of an opinion announcing the judgment of the court and two dissenting opinions (here and here).
Posted at 08:18 AM by Howard Bashman

"Objection! Funny Legal Ads Draw Censure; Sharks, Pit Bulls Out In Florida; UFO Clients Get the Ax in Syracuse." Nathan Koppel has this front page article today in The Wall Street Journal.
Posted at 08:00 AM by Howard Bashman

"The Supreme Court Agrees to Review a Sixth Circuit Ruling that Narrowly Construes Title VII's Protection Against Retaliation": Joanna Grossman and Deborah Brake have this essay online today at FindLaw.
Posted at 07:45 AM by Howard Bashman

Wednesday, February 06, 2008

"White House, Senate clash over frozen nominees": James Oliphant has this post today at "The Swamp" blog of The Chicago Tribune.
Posted at 11:54 PM by Howard Bashman

"Lawyer's threat led to secret deal in whistle-blower lawsuit; Stefani used text messages to get $8.4M settlement; Judge rules city must release files; Detroit weighs appeal": The Detroit News contains this article today.

And The Detroit Free Press reports today that "Mayor's secrets unraveling as text message scandal grows; Judge orders release of settlement papers city denied existed."
Posted at 11:50 PM by Howard Bashman

"The Terrorist and the Baby-Killer: They met outside a Pennsylvania abortion clinic; What happened next took everyone by surprise." This article appeared in last week's issue of the Philadelphia City Paper.
Posted at 11:08 PM by Howard Bashman

"State high court takes up Flesh Club suit": The Press-Enterprise of Riverside, California provides a news update reporting that "The nude cabaret and San Bernardino officials squared off before the state high court Wednesday in a fight over whether city government should pay a $1.4 million judgment to the club for hurting its business."
Posted at 08:40 PM by Howard Bashman

"Chief justice proposes more openness in judge selections": The St. Louis Post-Dispatch today contains an article that begins, "The state's top judge Tuesday pledged to give the public a peek into the nonpartisan court plan, a system of choosing judges that is under heavy fire from conservatives. Starting this month, court officials will disclose when and where screening panels will meet to fill an opening on the bench, said Missouri Supreme Court Chief Justice Laura Denvir Stith."

The Kansas City Star reports today that "Changes ahead for selection of Missouri judges."

And The Columbia Missourian reports that "Chief Justice argues in favor of non-partisan selection of judges."
Posted at 08:38 PM by Howard Bashman

"Supreme Court Justice in Hawaii": KGMB9 provides this report, which includes access to video coverage.
Posted at 08:33 PM by Howard Bashman

Fifth Circuit holds that a Louisiana-based federal district court may exercise personal jurisdiction over claims alleging for fraud, breach of contract, and breach of fiduciary duty against the Chicago-based law firm of Winston &Strawn, LLC: Today's ruling overturns the district court's dismissal of the case for lack of personal jurisdiction over the law firm.
Posted at 08:20 PM by Howard Bashman

"ACLU suit against S.J. firm gives judge pause; 'Torture flights' invoke state secrets privilege": Howard Mintz has this article today in The San Jose Mercury News.

Today in The San Francisco Chronicle, Bob Egelko reports that "Secrecy plea ties up torture flights case."

And The Associated Press reports that "Feds Want Rendition Lawsuit Dismissed."
Posted at 05:47 PM by Howard Bashman

"Court rejects mother's suit over son's circumcision; Parents upset with result, said Unity Hospital didn't offer informed consent": The St. Paul Pioneer Press today contains an article that begins, "A mother cannot sue Unity Hospital in Fridley and one of its doctors because she didn't like the way her baby's circumcision looked, the Minnesota Court of Appeals ruled Tuesday."

You can access yesterday's non-precedential ruling of the Minnesota Court of Appeals at this link.
Posted at 05:40 PM by Howard Bashman

"State high court sets hearing on same-sex marriages for March 4": Bob Egelko of The San Francisco Chronicle has a news update that begins, "The California Supreme Court said today it will hear arguments over the state's ban on same-sex marriage next month in San Francisco. A court scheduled a special three-hour hearing, three times as long as its usual sessions, for March 4 to consider lawsuits filed by the city of San Francisco and same-sex couples challenging the California law that defines marriage as the union of a man and a woman. A ruling is due within 90 days of the hearing."
Posted at 04:30 PM by Howard Bashman

"Mukasey Wants to Block Crack Releases": Lara Jakes Jordan of The Associated Press provides a report that begins, "Attorney General Michael Mukasey wants Congress to act within weeks to prevent the release of thousands of violent criminals from federal prison under new crack cocaine sentencing rules."
Posted at 04:25 PM by Howard Bashman

When should an appellate judge recuse from deciding an appeal based on having served as a judge on the court that decided the case below? In early January 2008, two new Justices joined the Supreme Court of Pennsylvania from the Superior Court of Pennsylvania, which is one of the Commonwealth's two intermediate appellate courts. Even more recently, Pennsylvania Governor Edward G. Rendell nominated the former President Judge of the Commonwealth Court of Pennsylvania, the state's other intermediate appellate court, to fill the third and final vacancy on Pennsylvania's highest court.

Some legislators who will be able to vote on whether to confirm Governor Rendell's nominee have questioned the nomination on the ground that the nominee, having served on the Commonwealth Court, will need to recuse himself from too large a number of cases if allowed to serve on the Pa. Supreme Court. Ironically, during the campaign that culminated in elections to the Pa. Supreme Court in November 2007, I did not hear anyone oppose the three candidates from the Pa. Superior Court on the ground that they would need to recuse from too many cases if elected to Pennsylvania's highest court.

I think there is general agreement that if a judge is promoted from a trial court to an intermediate appellate court, that judge should not hear and decide appeals from orders that he or she entered as a trial judge. [Update: Indeed, as a federal appellate judge who emailed in response to this post observed, a federal statute titled "Disqualification of trial judge to hear appeal" states that "No judge shall hear or determine an appeal from the decision of a case or issue tried by him."]

If a judge is promoted from an intermediate appellate court to the highest court of a jurisdiction, however, the recusal inquiry becomes more complicated. I think there would continue to be general agreement that the judge, while serving on the jurisdiction's highest court, should not preside over appeals from rulings issued by panels on which he or she served while sitting on the intermediate appellate court.

But what if the judge in question did not serve on the three-judge intermediate appellate court panel that issued the decision under review but had the ability to vote for rehearing en banc when the losing party sought that relief before the intermediate appellate court? If the order denying rehearing en banc simply said that the requested relief was denied without identifying how any of the judges on the en banc court voted, I would not be of the view that a judge who merely considered a request for en banc rehearing while serving on the intermediate appellate court should be recused from hearing and deciding the case on the jurisdiction's highest court.

Some intermediate appellate courts, such as the Pa. Commonwealth Court and the U.S. Court of Appeals for the Third Circuit, circulate decisions that are proposed to be issued as precedential opinions to all active non-panel judges before the decisions are officially issued. This pre-release circulation allows non-panel judges to flag any inconsistencies with the court's earlier precedential rulings and other governing law, and also to call for pre-decision rehearing en banc in the event the proposed decision is objectionable enough. In such a jurisdiction, a non-panel judge has the ability to become intricately involved in a decision, totally hidden from the public's view. But I would not rely on that possibility as a reason to advocate that a judge who is promoted to the jurisdiction's highest court must recuse from considering any cases that resulted in precedential rulings of the intermediate appellate court before his or her promotion.

If readers of this blog have views on these issues, which I plan to address in an forthcoming installment of my monthly "Upon Further Review" column for The Legal Intelligencer of Philadelphia, I welcome hearing your thoughts via email.

It is also noteworthy that neither the Pa. Supreme Court nor the U.S. Supreme Court has any provision to allow temporary appointments from other courts to fill vacancies on a case-by-case basis in the event of recusals. By contrast, the highest courts of many other jurisdictions -- California and West Virginia come to mind most quickly -- maintain a full complement of judges even in cases where some members of the court have recused by replacing the recused judges with judges from lower courts. Is it better to have a system where recused judges of a jurisdiction's highest court can be replaced by judges serving on an intermediate appellate court? Views on this subject are also welcome via email. Thanks!
Posted at 04:20 PM by Howard Bashman

"Whatever Happened to 'One Person, One Vote'? Why the crazy caucus and primary rules are legal." Law Professor Richard L. Hasen -- author of the "Election Law" blog -- has this jurisprudence essay online at Slate.
Posted at 03:11 PM by Howard Bashman

"Judicial-Pay Bill in Jeopardy?" Ed Whelan has this post today at National Review Online's "Bench Memos" blog.

On Monday night, I linked here to Lawrence Hurley's article headlined "Senate's Effort to Ban Junkets Could Stall Judicial Pay Raises" published that day in The Daily Journal of California.
Posted at 01:50 PM by Howard Bashman

Unanimous three-judge Seventh Circuit panel rejects constitutional challenges to provisions of the Adam Walsh Child Protection and Safety Act that limit a criminal defendant's access to alleged child pornography in a child pornography prosecution: Chief Judge Frank H. Easterbrook wrote today's ruling. This decision represents the first time that a federal appellate court has addressed the constitutionality of these particular statutory provisions, which were enacted in July of 2006.

To access this blog's earlier posts on this subject, click here and here.
Posted at 01:44 PM by Howard Bashman

"Court disbars two attorneys involved in Demoulas family feud": The Boston Globe provides a news update that begins, "Two lawyers were disbarred today by the state's highest court, which ruled that the attorneys violated ethical rules when they tried to find evidence of bias against a former Superior Court judge who was then presiding over the bitter and costly family fight for control of the billion-dollar Demoulas supermarket company. In bluntly written rulings, Supreme Judicial Court Chief Justice Margaret Marshall said the actions of former federal prosecutor Gary C. Crossen and Boston attorney Kevin P. Curry were unprecedented and were also clearly improper and unethical. The attorneys lured a law clerk of then Superior Court Judge Maria Lopez to Canada and New York with a false promise of a job."

And Massachusetts Lawyers Weekly reports that "Crossen, Curry disbarred by SJC."

Today's rulings of the Supreme Judicial Court of Massachusetts issued in In re Kevin P. Curry and In re Gary C. Crossen.
Posted at 01:30 PM by Howard Bashman

What makes metal baseball bats so dangerous? The U.S. Court of Appeals for the Federal Circuit issued this decision today.
Posted at 12:00 PM by Howard Bashman

In federal death penalty trial of defendant charged with two counts of murder committed while engaged in drug trafficking, the federal district court erred in precluding the prosecution from introducing evidence at the guilt phase related to post-mortem dismemberment: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 11:25 AM by Howard Bashman

Access today's nude dancing decision of the U.S. Court of Appeals for the Sixth Circuit: It's available online this link. Courtesy of Kenton County, Kentucky.
Posted at 10:55 AM by Howard Bashman

"Abortion law challenge still in limbo": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "It's been more than three years since California challenged a federal anti-abortion law that threatens the state with huge financial penalties, and more than a year since the opposing sides argued before a federal judge in San Francisco. All that either side has heard since then is a question from the judge about whether the law has expired."
Posted at 09:07 AM by Howard Bashman

"Prosecutor stresses Wecht performed private morgue work": Jason Cato has this article today in The Pittsburgh Tribune-Review.
Posted at 09:05 AM by Howard Bashman

"Georgia Loses Federal Case in a Dispute About Water": The New York Times contains this article today.

And today's edition of The Atlanta Journal-Constitution contains an article headlined "Georgia's Water Crisis: 'Big loser...is metro Atlanta'; Court declares 2003 pact null without OK."

You can access yesterday's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 09:00 AM by Howard Bashman

"Three were waterboarded, CIA chief confirms; Director Michael V. Hayden says the Al Qaeda suspects were the only ones subjected to the interrogation method; The CIA needs access to such 'enhanced' techniques, he argues to a Senate panel": This article appears today in The Los Angeles Times.

The New York Times reports today that "Intelligence Chief Cites Qaeda Threat to U.S."

And The Wall Street Journal contains an editorial entitled "Tall Torture Tales."
Posted at 08:55 AM by Howard Bashman

"Schools' interim desegregation plan challenged": The Louisville Courier-Journal today contains an article that begins, "The Louisville lawyer who successfully challenged Jefferson County's school desegregation policy is now challenging the district's interim plan, saying it illegally uses race to assign students. Attorney Ted Gordon filed a motion yesterday in U.S. District Court in Louisville, asking Judge John Heyburn II to review the temporary plan adopted last week for the 2008-09 school year."
Posted at 08:47 AM by Howard Bashman

"Judge dismisses felony charges against 'gap kids'": Today in The Providence (R.I.) Journal, Edward Fitzpatrick has an article that begins, "A judge yesterday dismissed felony charges filed against 115 teenagers during the 130 days when the state prosecuted 17-year-olds as adults, but he refused to dismiss the second-degree murder indictment of the state's most high-profile 'gap kid,' Barrington’s Ryan Greenberg."

And The New York Times reports today that "Judge Rules to Dismiss Cases of 17-Year-Olds Seen as Adults."
Posted at 08:40 AM by Howard Bashman

"A Shameful Record": The New York Times today contains an editorial that begins, "The United States leads the world in a shameful category: the number of people it has locked up for life without parole for crimes committed by juveniles."
Posted at 08:32 AM by Howard Bashman

"The Transylvania University Library heist -- Panel: Book thieves deserve more time." This article appears today in The Lexington Herald-Leader.

My earlier coverage of yesterday's Sixth Circuit ruling appears at this link.
Posted at 08:30 AM by Howard Bashman

Available online from law.com: An article reports that "Calif. High Court's Leanings Hard to See in City of Hope Patent Case; Justices strongly question both sides in highly watched patent case."

In other news, "New Judge, but Same Obstacles, in Ga. Courthouse Shooting Case; 'The change in judges doesn't make the problems go away,' notes a former judge."

Amaris Elliott-Engel reports that "Question of Law on Bystander Recovery Sent to Pa. High Court."

And in news from New York, "Second Suit Proceeds Seeking Pay Raise for Judges; Possible 'separation of powers' violation."
Posted at 08:11 AM by Howard Bashman

"Court panel grills lawyers over firing of former Khalil Gibran principal": The New York Daily News today contains an article that begins, "A federal appeals court panel Tuesday grilled city lawyers over the way officials handled the ouster of the principal of a controversial Arabic-language school."

And The Associated Press provides a report headlined "Judges: City overreacted over Muslim principal."
Posted at 08:07 AM by Howard Bashman

"Breyer in isles for forum": This article appears today in The Honolulu Star-Bulletin.

And The Honolulu Advertiser reports today that "U.S. justice urges Islanders to study the Constitution." You can access a related photo gallery at this link.
Posted at 07:50 AM by Howard Bashman

"A New York Appellate Court Gives Effect to a Canadian Same-Sex Marriage: Using Traditional Rules to Validate a Non-Traditional Marriage." Joanna Grossman has this essay online today at FindLaw.
Posted at 07:44 AM by Howard Bashman

Tuesday, February 05, 2008

"Fraud claim heads to high court; Definition of false claim at issue": The Cincinnati Enquirer today contains an article that begins, "A federal whistle-blower lawsuit that originated in Cincinnati more than a decade ago will be argued Feb. 26 before the U.S. Supreme Court. The case has implications for everything from defense contracts to health care. It's not the first time a Cincinnati case has made it to the nation's highest court. But it's only the sixth time in the 148-year history of the federal False Claims Act that the Supreme Court has heard a case dealing with the arcane statute - a Civil War-era law allowing citizens to bring government fraud suits and collect a bounty if successful."
Posted at 10:47 PM by Howard Bashman

"Two local lawyers say arguing before high court was career highlight": The Kansas City Star today contains an article that begins, "Baseball players strive to play in the World Series, while singers dream of performing in Carnegie Hall. For attorneys, few career achievements can rival arguing a case before the U.S. Supreme Court."
Posted at 10:45 PM by Howard Bashman

"A Second Case on Detainees Complicates Supreme Court Deliberations": Linda Greenhouse will have this news analysis Wednesday in The New York Times.
Posted at 10:34 PM by Howard Bashman

"Louisville lawyer challenges interim desegregation plan": The Louisville Courier-Journal provides a news update that begins, "Louisville lawyer Ted Gordon is asking a federal judge to review an interim desegregation plan that Jefferson County Public Schools has adopted for the coming school year, saying the plan violates the U.S. Supreme Court’s ruling limiting the use of race."
Posted at 10:28 PM by Howard Bashman

"Appeals court overturns ruling in Shaler slayings": Jason Cato of The Pittsburgh Tribune-Review has a news update that begins, "A federal appeals court today gave the mother of a slain Carnegie man another shot at suing Allegheny County and seven 911 call center employees for failing to protect her son."

My earlier coverage of today's Third Circuit ruling appears at this link.
Posted at 10:27 PM by Howard Bashman

"Appeals court: Transy library thieves should receive more prison time." The Lexington Herald-Leader provides this news update.

My earlier coverage of today's Sixth Circuit ruling appears at this link.
Posted at 10:24 PM by Howard Bashman

"Doctor describes morgue work under Wecht": Jason Cato has this article today in The Pittsburgh Tribune-Review.

And today's edition of The Pittsburgh Post-Gazette contains an article headlined "Witness: Private autopsies done on county time."
Posted at 10:20 PM by Howard Bashman

"Georgia loses major ruling on rights to Lanier water": The Atlanta Journal-Constitution provides this news update.

And The Associated Press reports that "Georgia Loses Major Water Ruling."

You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 04:50 PM by Howard Bashman

In this afternoon's FedEx delivery: The Justice Louis Dembitz Brandeis bobblehead doll. He's riding on the Erie Railroad, and he's carrying a green bag.
Posted at 03:20 PM by Howard Bashman

"Moussaoui Judge: Terror Trials Work." The Associated Press on Sunday had a report that begins, "The judge who presided over Zacarias Moussaoui's trial questioned the government's decision to seek a death sentence against the Sept. 11 conspirator, and offered a strong defense of federal courts' ability to handle terror trials. U.S. District Judge Leonie Brinkema said in a speech Friday at the American University law school that the government's decision to seek a death sentence against Moussaoui appeared to be politically motivated, and that the zealous pursuit of a death sentence opened up numerous issues of exposing classified information that otherwise could have been avoided."

I see from this post by Marty Lederman at "Balkinization" that you can access a podcast of Judge Brinkema remarks via this link (10.2MB mp3 audio file). A media advisory from American University Washington College of Law, headlined "Moussaoui Trial Judge Brinkema Keynotes AU Law/Brookings Conference," advised that "For security reasons, absolutely no photography or filming of Judge Brinkema will be permitted." Sketches of Judge Brinkema, however, appear to be allowed.
Posted at 03:10 PM by Howard Bashman

"Kan. Court Blocks Abortion Grand Jury": The Associated Press provides a report that begins, "The Kansas Supreme Court on Tuesday temporarily blocked a grand jury from obtaining patient records from a physician who is one of the nation's few late-term abortion providers. The grand jury is investigating whether Dr. George Tiller has broken Kansas laws restricting abortion, as many abortion opponents allege. The grand jury subpoenaed the medical files of about 2,000 women, including some who decided against having abortions."

You can access today's order of the Supreme Court of Kansas at this link.
Posted at 02:30 PM by Howard Bashman

Not your typical "state created danger" case involving a 911 call center: In this decision that the U.S. Court of Appeals for the Third Circuit issued today, a 911 call center dispatcher used the databases available to him to track down the whereabouts of his former girlfriend and the former girlfriend's new boyfriend. After being fired from the 911 call center, the former dispatcher then used that information to kill his ex-girlfriend and her new boyfriend. Today's ruling contains an extensive discussion of the application of the pleading standards set forth in Bell Atlantic Corp. v. Twombly outside of the antitrust context.
Posted at 02:15 PM by Howard Bashman

Unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit holds that the Illinois offense of "aggravated battery of a peace officer" is not a "crime of moral turpitude" under federal immigration law: And chances are quite good that, after reading today's opinion by Circuit Judge Ann Claire Williams, you will agree with the outcome. Also available for download is the oral argument audio (4.43MB mp3 file).
Posted at 02:02 PM by Howard Bashman

More reasons why you shouldn't steal rare books from Transylvania University: Even if you aren't attacked by vampires, you could still get caught and end up serving time in federal prison. Consider the case of four college buddies who hatched what must have seemed like the perfect plan -- in a world where truth is stranger than fiction. In any event, today's ruling of the U.S. Court of Appeals for the Sixth Circuit demonstrates that nothing good ever comes of attacking a librarian with a stun pen.

Update: An article about the case, published in the November 12, 2007 issue of The Lexington Herald-Leader, begins: "The scheme was hatched in a haze of marijuana smoke, with inspiration from popular heist flicks. And the motivation stemmed from a desire to escape the 'mundane, nickel-and-dime existence' of suburbia, according to a new article in Vanity Fair about one of Lexington's most notorious crimes." Unfortunately, Vanity Fair magazine has not made the article readily available online.
Posted at 12:14 PM by Howard Bashman

"This case presents the question whether the hanging paragraph eliminates an under-secured creditor's deficiency claim when, in a Chapter 13 plan, the debtors propose to surrender a car purchased within 910 days before filing for bankruptcy. The courts are split on this issue." Addressing the "hanging paragraph" of 11 U.S.C. sec. 1325, a provision added to the Bankruptcy Code as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, a three-judge Eighth Circuit panel today rejects the rulings of a majority of bankruptcy courts that have addressed the issue and sides instead with what it describes as "the emerging trend" to allow a deficiency claim. You can access today's ruling at this link.
Posted at 11:40 AM by Howard Bashman

Access online the January 2008 issue of The Circuit Rider: The Journal of the Seventh Circuit Bar Association. U.S. Magistrate Judge Jeffrey Cole (N.D. Ill.), the publication's editor-in-chief, has graciously permitted me to post the issue online at this link.

Among the articles of interest in this issue are "Toward A More Impure Writing Style: The Opinions of Judge Posner and Chief Judge Easterbrook and What the Bar Can Learn From Them"; "Appealing an interlocutory decision: What EXACTLY IS a 'Controlling Question of Law' Under 28 U.S.C. sec. 1292(b)?"; and "How Will Seventh Circuit Pleading Requirements And Dismissal Standards Change In The Wake Of Bell Atlantic?"

I have also received permission to post here at "How Appealing" some recent earlier issues of that publication, so stay tuned for additional online access to recent issues The Circuit Rider in the days ahead.
Posted at 11:02 AM by Howard Bashman

"9th Circuit panel rules against police officer who ran sex site": David L. Hudson Jr. has this news analysis online at the First Amendment Center.

The Ninth Circuit issued its original ruling in this case on September 5, 2007, and my coverage of that ruling appears here and here. On Friday of last week, the Ninth Circuit issued a slightly amended opinion in the case.
Posted at 10:44 AM by Howard Bashman

"Justice Prosser's link to priest case assailed; As DA in '79, he decided not to prosecute, records indicate": This article appears today in The Milwaukee Journal Sentinel.

And yesterday, The Capital Times of Madison, Wisconsin contained an article headlined "Did Justice Prosser shrug off accused priest?"
Posted at 09:07 AM by Howard Bashman

"Kohring accuses his trial judge of bias; Ex-legislator says he tried to cut job of Sedwick's wife": The Anchorage Daily News today contains an article that begins, "Late last week, just days before his scheduled sentencing on corruption charges, former state Rep. Vic Kohring accused the federal judge presiding over his case of bias and asked that a jury's guilty verdicts be thrown out. On Monday, U.S. District Judge John Sedwick asked another judge to decide if he should step aside."
Posted at 09:05 AM by Howard Bashman

"Reform judicial elections this year: State should get ahead of special-interest money 'tsunami.'" This editorial appears today in The Minneapolis Star Tribune.
Posted at 09:02 AM by Howard Bashman

"Judge cuts court award; Anti-gay church sees reduction of penalty for protest": The Baltimore Sun today contains an article that begins, "A federal judge in Baltimore substantially reduced yesterday the amount of damages a Kansas-based anti-gay group and three of its leading members must pay for their protest at a Marine's funeral in Westminster."

Yesterday's ruling of the U.S. District Court for the District of Maryland reduces the jury's total damages award from $10.9 million to $5 million. The jury's compensatory damages award remains unchanged at $2.9 million, but the jury's punitive damages award has been reduced from $8 million to $2.1 million.
Posted at 09:00 AM by Howard Bashman

"Judge Reinstates Rules on Sonar, Criticizing Bush's Waiver for Navy": This article appears today in The New York Times.

The Washington Post reports today that "White House Went Too Far in Sonar Case, Judge Rules."

The Los Angeles Times reports that "Judge rejects Navy request for sonar training exemption; Ruling upholds court- ordered protections for whales and dolphins."

Bob Egelko of The San Francisco Chronicle reports that "Judge rejects Bush's try to overturn ruling."

And today's broadcast of NPR's "Morning Edition" contained an audio segment entitled "Judge: Navy Not Exempt from Sonar Ban" (RealPlayer required).

You can access yesterday's ruling of the U.S. District Court for the Central District of California at this link.
Posted at 08:44 AM by Howard Bashman

Today at noon local time at the Royal Hawaiian Hotel's Regency Room in Honolulu: The Rotary Club of Honolulu hosts a luncheon featuring Justice Stephen G. Breyer. More details are available here and here.
Posted at 08:35 AM by Howard Bashman

"Lawyers Fighting D.C. Gun Ban Argue Against Militia Focus": Robert Barnes has this article today in The Washington Post.

You can access at this link the Brief for Respondent filed yesterday in the U.S. Supreme Court.
Posted at 08:22 AM by Howard Bashman

"A Corporate View of Mafia Tactics: Protesting, Lobbying and Citing Upton Sinclair." Today in The New York Times, Adam Liptak has this installment of his weekly "Sidebar" column.
Posted at 08:14 AM by Howard Bashman

"A Victory for Same-Sex Marriage": The New York Times today contains an editorial that begins, "In a decision at once common-sensical and profound, a New York State appeals court ruled Friday that same-sex marriages validly performed in other jurisdictions are entitled to recognition in New York. It was common sense because it simply accorded same-sex marriages the same legal status as other marriages. It was profound because of the way it could transform the lives of gay people."

My earlier coverage of last Friday's ruling appears at this link.
Posted at 08:10 AM by Howard Bashman

"No stranger to the spotlight: New Nichols judge tested; Cobb's Jim Bodiford has overseen high-profile cases, including some aired on Court TV, but didn't seek courthouse shootings trial." This article appears today in The Atlanta Journal-Constitution.
Posted at 08:04 AM by Howard Bashman

"U.S. plans swift new appeal on detainees": At "SCOTUSblog," Lyle Denniston has a post that begins, "The Justice Department disclosed Monday that it will file a swift new appeal to the Supreme Court, in a new round in the continuing legal combat over the Guantanamo Bay detainees."
Posted at 07:50 AM by Howard Bashman

In commentary available online from FindLaw: Carl Tobias has an essay entitled "Is Senator and Presidential Candidate John McCain Soft on Judges? A Closer Examination of the Basis for these Charges."

And Marci A. Hamilton has an essay entitled "The Connecticut Supreme Court Reaches the Right Decision In a Case Under the Religious Land Use and Institutionalized Persons Act." My earlier coverage appears at this link.
Posted at 07:48 AM by Howard Bashman

Monday, February 04, 2008

"'Text-Only' Web Obscenity Case Attracts National Attention; Motions to dismiss said obscenity laws should not be applied to text where no pictures were involved": law.com provides this report.

I wrote about this case in the October 9, 2006 installment of my "On Appeal" column, headlined "Text This: Words Alone Can Violate Federal Obscenity Laws."
Posted at 10:50 PM by Howard Bashman

"Law buffs compete in moot court; In past, Justices Alito and Roberts attended event": This article appears today in The GW Hatchet.
Posted at 10:45 PM by Howard Bashman

"Senate's Effort to Ban Junkets Could Stall Judicial Pay Raises": Lawrence Hurley has this article today in The Daily Journal of California.
Posted at 08:48 PM by Howard Bashman

"Kathryn Kolbert to Head People For the American Way; Renowned Civil Rights Lawyer, Advocate, and Award-winning Journalist": The organization People For the American Way issued this press release today.
Posted at 08:37 PM by Howard Bashman

Respondent's Brief filed today in the U.S. Supreme Court in the D.C. gun case: You can access the brief at this link. And at "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "Second Amendment Lawyer Still In the Saddle."
Posted at 08:30 PM by Howard Bashman

"The Constitution and the Candidates: What would the framers say?" Law Professor Akhil Reed Amar has this jurisprudence essay online at Slate.
Posted at 07:14 PM by Howard Bashman

"Child Soldier Case on Docket at Gitmo": The Associated Press provides a report that begins, "A U.S. military tribunal convening Monday at Guantanamo will hear challenges from attorneys for a Canadian terror suspect accused of killing an American soldier when he was 15 - an age they say should disqualify him from trial."
Posted at 12:02 PM by Howard Bashman

"Cobb Judge Bodiford to take on Brian Nichols case; He's handled high-profile cases, including crematory, Tokars and Lynn Turner murder trials": The Atlanta Journal-Constitution provides this news update.

And The Associated Press provides a report headlined "New Judge in Courthouse Shooting Case."
Posted at 12:00 PM by Howard Bashman

American Express owes nothing to man who claims to have thought up "My Life, My Card" catch-phrase as a means for marketing credit cards: The U.S. Court of Appeals for the Second Circuit issued this ruling today.
Posted at 11:32 AM by Howard Bashman

"Deadline for Commenting on Federal Appellate Rule Amendments Is Fast Approaching": Today's installment of my "On Appeal" column for law.com can be accessed at this link.
Posted at 09:22 AM by Howard Bashman

"Law on back pay proposed in Fort Lawton case": The Seattle Times today contains an article that begins, "Samuel Snow got a check from the Pentagon after the Army announced last October it would overturn convictions of Snow and 27 other African-American soldiers wrongly tried for rioting at Seattle's Fort Lawton in 1944. The check was for $725 -- the amount of pay that Snow, now 82, lost while serving a year in an Army lockup. Rep. Jim McDermott, D-Seattle, and Sen. Bill Nelson, D-Fla., have introduced legislation to make the military pay much more to Snow and the other surviving Fort Lawton soldier, and to the families of those who have died since the convictions. The legislation would calculate the back pay in current dollars with interest. That could change the $725 sent to Snow to about $88,000, according to Nelson's office."
Posted at 09:18 AM by Howard Bashman

"Judge rejects federal workers' pension suit": The Honolulu Advertiser today contains an article that begins, "A lawsuit by federal workers in Hawai'i and Alaska seeking to increase their pension benefits has been dismissed by a visiting federal judge, who ruled that the issue should be resolved by Congress. The lawsuit stems from a pay system that treats federal workers in the two states differently than elsewhere."

I have posted at this link last Wednesday's ruling of the U.S. District Court for the District of Hawaii.
Posted at 09:14 AM by Howard Bashman

"Trust, but verify: Any law authorizing surveillance of foreign calls and e-mails needs to include safeguards against abuse." This editorial appears today in The Los Angeles Times.
Posted at 09:03 AM by Howard Bashman

"Was encounter with Cheney a touch, a slap or a shove? A Colorado man had an encounter with the vice president, but no one, including Secret Service agents, agrees on what happened; Could Cheney be forced to testify?" The Los Angeles Times contains this article today.
Posted at 08:59 AM by Howard Bashman

"Felons' DNA clogs system; Recent cases highlight the database's value and the burden on U.S. crime labs": This article appears today in The Denver Post.
Posted at 08:25 AM by Howard Bashman

"Begging Bush's Pardon": Today in The New York Times, George Lardner Jr. has an op-ed that begins, "The first rule for handling requests for presidential pardons was set down in a report to Congress in 1887, during Grover Cleveland's first term in office."
Posted at 08:20 AM by Howard Bashman

"McCain and the Supreme Court": Steven G. Calabresi and John O. McGinnis have this op-ed today in The Wall Street Journal.
Posted at 08:13 AM by Howard Bashman

"New judge selection Monday: Nichols death trial may start in weeks." This article appeared yesterday in The Atlanta Journal-Constitution.
Posted at 08:05 AM by Howard Bashman

"High Court To Consider Ashcroft Case": Joseph Goldstein has this article today in The New York Sun.
Posted at 07:57 AM by Howard Bashman

"Does the Fifth Amendment Protect the Refusal to Reveal Computer Passwords? In a Dubious Ruling, A Vermont Magistrate Judge Says Yes." Sherry F. Colb has this essay online today at FindLaw.
Posted at 07:40 AM by Howard Bashman

Sunday, February 03, 2008

"McCain Due at Conservative Gathering": The Associated Press provides a report that begins, "Republican John McCain says he will try to win over some conservative Republicans by promising to appoint judges in the mold of Supreme Court Chief Justice John Roberts and Justice Samuel Alito."
Posted at 07:48 PM by Howard Bashman

"Grisham: 'Got to get away from elected judges.'" This article appears today in The Clarion-Ledger of Jackson, Mississippi.
Posted at 02:10 PM by Howard Bashman

"A Clearer Picture on Voter ID": Jimmy Carter and James A. Baker III have this op-ed today in The New York Times.
Posted at 02:05 PM by Howard Bashman

"Jailhouse 'lawyer' gets rare nod from U.S. Supreme Court": The Associated Press provides this report.
Posted at 01:58 PM by Howard Bashman

"Breyer will weigh in on isle issues": This past Friday's issue of The Honolulu Star-Bulletin contained an article that begins, "Associate Justice Stephen Breyer of the U.S. Supreme Court will be on a panel next week discussing the legal challenge to Kamehameha Schools' admissions policy giving preference to native Hawaiian applicants. Other panelists include two key lawyers in the case - Kathleen Sullivan, who defended the private school's admissions policy, and Eric Grant, who represented the unnamed non-native Hawaiian student in the lawsuit contesting the policy."
Posted at 01:50 PM by Howard Bashman

"'Supreme Conflict' chronicles the tips of balance on court": This article appears today in The Sarasota Herald-Tribune. According to the article ABC News correspondent Jan Crawford Greenburg will be speaking about her book this Wednesday at 7:30 p.m. at Sarasota's Holley Hall.
Posted at 01:33 PM by Howard Bashman

"Judge's social life raises questions": The Galveston County Daily News today contains an article that begins, "At 11:30 a.m. on Oct. 6, 2006, Galveston attorney Tony Buzbee scored an important victory in a case involving 52 victims of the 2005 explosion at BP's Texas City refinery. Minutes after the hearing, Buzbee took the judge who made the ruling, U.S. District Judge Samuel B. Kent, to lunch, said a witness who asked not to be named for fear of reprisal."
Posted at 01:22 PM by Howard Bashman

Saturday, February 02, 2008

"Guantanamo Decision Rebuffs Government": The New York Times contains this article today.

And Bill Mears of CNN.com reports that "Court hands White House another setback over detainees."

My earlier coverage appears at this link.
Posted at 11:50 PM by Howard Bashman

"It's torture; it's illegal: The attorney general's evasions on waterboarding are repugnant, and set a dangerous global precedent." This editorial appears today in The Los Angeles Times.

Also today in that newspaper, columnist Tim Rutten has an op-ed entitled "Mukasey's confession: Is waterboarding torture? It it's done to him, it is; if it's someone else, uh, he's not sure."
Posted at 11:45 PM by Howard Bashman

"Grand Jury Subpoenas Times Reporter Over Book Sources": Dan Eggen has this article today in The Washington Post.
Posted at 11:22 PM by Howard Bashman

"Snipes acquitted of felony charges; Actor, guilty of misdemeanors, may face prison": The Ocala Star-Banner contains this article today.

The St. Petersburg Times reports today that "Snipes wins, loses in trial; The actor is acquitted on two felony charges but convicted of not filing tax returns."

The Orlando Sentinel reports that "Wesley Snipes found not guilty of tax fraud, guilty of misdemeanors."

The New York Times reports that "Wesley Snipes Cleared of Serious Tax Charges."

The Washington Post reports that "Wesley Snipes Fights Taxman To a Draw; Action Star Found Guilty Only of Lesser Charges."

And The Los Angeles Times reports that "Actor Snipes acquitted of tax fraud, guilty of failing to file a return; The onetime box office star faces up to three years in prison."
Posted at 10:54 PM by Howard Bashman

"Gay marriage on ballot; An initiative to ban same-sex marriage in Florida is certified for the November vote": This article appears today in The St. Petersburg Times.

And The Orlando Sentinel reports today that "Florida to vote on gay marriage ban amendment."
Posted at 10:50 PM by Howard Bashman

"Lawyers claim Kline could ID Tiller patients; A Phill Kline spokesman counters that 'No patient has ever been identified'": The Wichita Eagle today contains an article that begins, "Lawyers for Wichita abortion provider George Tiller began turning over names of clinic employees to a Sedgwick County grand jury Friday. They also began, under subpoena, compiling files on women who sought late-term abortions."
Posted at 04:00 PM by Howard Bashman

"State dropping rape prosecution": Friday's edition of The Republican of Springfield, Massachusetts contained an article that begins, "The state is no longer pursuing charges against a 59-year-old pharmacist who was accused of rape and two counts of indecent assault and battery. Assistant District Attorney Elizabeth G. Dineen recently filed papers to end the prosecution of Nicholas Creanza, of Wilbraham, because of a state Supreme Judicial Court interpretation of the rape law."

And The Associated Press reports that "Legal Loophole Stops Charges in Mass."
Posted at 03:55 PM by Howard Bashman

"Insulting collections letter draws lawsuit": The Buffalo News today contains an article that begins, "There are 'Dear John' letters, and then there’s the kind of missive Justin Thompson got. The Derby resident received a letter from a national collections agency that threatened to sue him over the $16.39 he owed for some CDs he ordered a year ago from Columbia House. The envelope was addressed to 'S--t Face' and the letter’s salutation read 'Dear S--t.'"
Posted at 03:50 PM by Howard Bashman

"Money talks, says study of justices; Donations taint La. top court, it finds": This article appeared yesterday in The Times Picayune of New Orleans.
Posted at 03:42 PM by Howard Bashman

"Civil unions get the nod in Oregon; A referendum ruling clears the way for gays and lesbians to register as domestic partners": Ashbel S. Green has this article today in The Oregonian. The newspaper also reports today that "Gay couples elated by judge's decision; Officials expect an onslaught of registrations; the forms are available online."

And The Statesman Journal of Salem, Oregon reports today that "Domestic-partnership law takes effect; Federal judge lifts 34-day stay on Oregon benefits."

You can access a transcript of yesterday's oral ruling of the U.S. District Court for the District of Oregon at this link.
Posted at 03:15 PM by Howard Bashman

"Ga. legislators have Roe in their sights; Lawmakers propose amendment defining life as beginning at conception; critics say it could lose in court and provide case law and windfall for abortion-rights attorneys": This article will appear Monday in the Fulton County Daily Report.
Posted at 01:12 PM by Howard Bashman

"Divorce wants Supreme Court to rehear case; Jewish religion targeted, lawyer insists; Former wife was awarded $47,500": The Montreal Gazette today contains an article that begins, "A Montreal man who took years to grant his wife a Jewish divorce has taken the exceptional step of asking the Supreme Court to rehear his case and is challenging the constitutionality of a section of the Divorce Act that penalizes spouses who stand in the way of religious divorces."
Posted at 01:08 PM by Howard Bashman

"Court upholds dismissal of suit over schools' same-sex teaching": The Associated Press provides this report.

And the ACLU issued a press release entitled "Federal Appeals Court Says It's OK for School to Teach Children's Book Encouraging Tolerance for Gay People."

My earlier coverage of Thursday's First Circuit ruling appears at this link.

Elsewhere, this week's issue of The Memphis Flyer contains an article headlined "Don't Say 'Gay': A proposed state law would ban any discussion of homosexuality in elementary and middle schools."
Posted at 01:02 PM by Howard Bashman

"State Court Recognizes Gay Marriages From Elsewhere": Today's edition of The New York Times contains an article that begins, "A New York appellate court ruled Friday that valid out-of-state marriages of same-sex couples must be legally recognized in New York, just as the law recognizes those of heterosexual couples solemnized elsewhere. Lawyers for both sides said the ruling applied to all public and private employers in the state."

The Rochester Democrat and Chronicle reports today that "Gay marriages ruled valid in N.Y."

Reuters reports that "N.Y. court declares out-of-state gay marriages valid."

The Associated Press provides a report headlined "Court: Gay marriage in Canada should be recognized in New York."

And the ACLU yesterday issued a press release entitled "Appeals Court Says State Must Recognize Canadian Marriage of New York Lesbian Couple."

You can access yesterday's ruling of the New York State Supreme Court, Appellate Division, Fourth Department, at this link.
Posted at 12:40 PM by Howard Bashman

"Enron investors get new chance; Judge will allow arguments not covered previously": The Houston Chronicle today contains an article that begins, "A federal judge in Houston on Friday left open a sliver of hope for Enron investors suing big banks over their alleged roles in defrauding investors in the energy company's collapse. U.S. District Judge Melinda Harmon will allow the plaintiffs to file additional arguments by mid-March concerning the banks' investment-banking roles that weren't covered previously in the case."
Posted at 12:25 PM by Howard Bashman

Available online from law.com: Marcia Coyle reports that "Retaliation Cases Hit High Court En Masse; Justices to review trio of key cases."

In news from California, "Google Appeal Carries Big Evidence Issue."

And the new installment of my "On Appeal" essay for law.com is headlined "Deadline for Commenting on Federal Appellate Rule Amendments Is Fast Approaching." In addition, my two recent blog posts on this subject can be accessed here and here.
Posted at 08:50 AM by Howard Bashman

Friday, February 01, 2008

"Art or Obscenity? Unusual Case Draws Controversy; Child Rape Fiction Case Tests if Writers Can Be Punished Under Federal Obscenity Law." ABCNews.com provides this report today. My most recent earlier coverage appears at this link.
Posted at 11:38 PM by Howard Bashman

"Snipes not guilty on felony charges, convicted on 3 misdemeanors": The Ocala Star-Banner provides this news update.

And The Associated Press reports that "Jury Acquits Wesley Snipes of Tax Fraud."
Posted at 04:48 PM by Howard Bashman

If a mail order company authorizes the U.S. Postal Service to destroy its undeliverable merchandise instead of returning it, the company has not suffered a loss entitling it to restitution if someone steals that merchandise from the Post Office's trash: For those who are wondering what happens to all of the undeliverable DVDs and CDs that BMG Columbia House mails out, this ruling that the U.S. Court of Appeals for the Eighth Circuit issued today provides an answer.
Posted at 03:34 PM by Howard Bashman

Richard Hatch may have won the reality television show "Survivor," but he did not win his First Circuit appeal from a tax evasion conviction: The U.S. Court of Appeals for the First Circuit issued this 52-page ruling today affirming Hatch's conviction and sentence.
Posted at 03:14 PM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "Court Won't Reconsider Guantanamo Ruling" and "Fake Bomb Defendant Cites 1st Amendment."
Posted at 02:08 PM by Howard Bashman

"Roadblock for Justice nominee": Today in The Chicago Tribune, James Oliphant has an article that begins, "Chicago federal Judge Mark Filip, slated to be the No. 2 official at the Justice Department, is caught in a standoff between Senate Democrats and the Bush administration, putting his nomination on hold. And he can thank one of his home-state senators, Dick Durbin, for it."
Posted at 11:52 AM by Howard Bashman

Unanimous three-judge Second Circuit panel affirms dismissal of lawsuit alleging that New York State's use of eminent domain for the Atlantic Yards project violates the Public Use Clause of the Fifth Amendment: You can access today's interesting ruling at this link.

In early news coverage, The Associated Press reports that "Federal appeals court says Atlantic Yards project can go forward."
Posted at 11:40 AM by Howard Bashman

"Times Reporter Subpoenaed Over Source for Book": The New York Times today contains an article that begins, "A federal grand jury has issued a subpoena to a reporter of The New York Times, apparently to try to force him to reveal his confidential sources for a 2006 book on the Central Intelligence Agency, one of the reporter's lawyers said Thursday."
Posted at 11:30 AM by Howard Bashman

The U.S. Court of Appeals for the D.C. Circuit today issued an order denying rehearing en banc in Bismullah v. Gates: The order denying rehearing en banc, in this Guantanamo detainee-related case in which the U.S. Supreme Court previously indicated it was looking forward to receiving the D.C. Circuit's views, is accompanied by five separate opinions -- two concurring in the denial of rehearing en banc and three dissenting therefrom.

According to today's order, five of the D.C. Circuit's active judges voted to grant rehearing en banc. Because that court currently consists of ten active judges, a majority of six votes was needed to grant rehearing en banc.

At "SCOTUSblog," Lyle Denniston has a post titled "No rehearing on major detainee ruling." In September 2007, Lyle previewed the federal government's rehearing request in this post.

I had this post about the original three-judge panel D.C. Circuit's ruling in this case on July 20, 2007, the day that opinion issued.
Posted at 10:58 AM by Howard Bashman

"Four judges in the hat for Nichols trial": This article appears today in The Atlanta Journal-Constitution, along with an article headlined "Nichols writer didn't expect fuss."
Posted at 09:45 AM by Howard Bashman

"Mukasey's Mojo: Yes, he stonewalled on water-boarding, but the attorney general's testimony still revealed something profound about the man himself." Benjamin Wittes has this essay online at The New Republic.
Posted at 09:42 AM by Howard Bashman

"Stanford's Lessig tackling even bigger battle": This article appears today in The San Francisco Chronicle.
Posted at 09:40 AM by Howard Bashman

"Surveillance Law Extended For 15 Days": Dan Eggen has this article today in The Washington Post.
Posted at 09:36 AM by Howard Bashman

"Bush's hedge on bill renews debate over 'signing statements'; Critics worry they may be seen as giving the president authority to disregard laws that have been passed": This article appears today in The Los Angeles Times.
Posted at 09:35 AM by Howard Bashman

"TiVo Wins Injunction in Patent Fight; Since the 'eBay' ruling, injunctions have been harder to come by": law.com provides this report.

The Rocky Mountain News reports today that "Court upholds patent infringement ruling."

And Reuters reports that "U.S. patent court rules for TiVo, against EchoStar."

My earlier coverage of yesterday's Federal Circuit ruling appears at this link.
Posted at 09:20 AM by Howard Bashman

"Release of 1950s U.S. Grand Jury Transcripts Is Sought in Rosenberg Atomic Spy Case": This article appears today in The New York Times.
Posted at 09:05 AM by Howard Bashman

"Crime Victims' Right to Object to a Plea Agreement": Paul Cassell has this post at "The Volokh Conspiracy."
Posted at 08:50 AM by Howard Bashman

"Backlog: Texas Supreme Court justices must dispose of their cases in a more timely manner." This editorial appears today in The Houston Chronicle.
Posted at 08:47 AM by Howard Bashman

"Ex-high school athlete sues N.J. Supreme Court justice": The Atlantic City (N.J.) Press today contains an article that begins, "A former high school football player is suing a state Supreme Court justice, alleging the justice used his power to intervene in a dispute between his son and the teen. Conor Larkin, who played on the Haddonfield High School football team with Justice Roberto A. Rivera-Soto's then-sophomore son, is seeking unspecified monetary damages in the suit filed Thursday. In July, the state Supreme Court took the rare step of censuring Rivera-Soto for his conduct in the case. The court found that he violated judicial standards while interceding in the dispute."

And The Newark (N.J.) Star-Ledger reports today that "Star athlete sues state justice over dispute with son."
Posted at 08:44 AM by Howard Bashman

"Justice Delayed: Judicial confirmations should keep pace with Clinton's final years." U.S. Senator Arlen Specter (R-PA), the ranking Republican on the Senate Judiciary Committee, has this op-ed today in The Wall Street Journal.
Posted at 08:33 AM by Howard Bashman

"Testimony focuses on campaign work in Wecht trial": Jason Cato has this article today in The Pittsburgh Tribune-Review.

And The Pittsburgh Post-Gazette reports today that "More Wecht staffers say errands impaired work."
Posted at 08:28 AM by Howard Bashman

"Bail bond company sees Wesley Snipes as flight risk; Judge refuses firm's motion to be released from actor's bond; jury still deliberating": The Ocala Star-Banner contains this article today.
Posted at 08:04 AM by Howard Bashman

"Law students protest Bybee's torture memo; Audience members place trash bags on heads during talk by former chief of Bush's Office of Legal Counsel": This article appears today in The Yale Daily News.
Posted at 07:55 AM by Howard Bashman

"Oregon court upholds award; State justices affirm a $79.5 million verdict against Philip Morris for a second time": Ashbel S. Green has this article, in which I am quoted, today in The Oregonian.
Posted at 07:50 AM by Howard Bashman

In commentary available online from FindLaw: Scott Gerber and Kevin Hawley have an essay entitled "Blame Canada: The Arguments For and Against Increasing Federal Judicial Salaries."

And Vikram David Amar has an essay entitled "The California Supreme Court's Decision on Whether an Employee Can Be Fired For Testing Positive for Off-the-Job, Doctor-Suggested Medical Use of Marijuana."
Posted at 07:44 AM by Howard Bashman

"Alito Stops Short of Thomas, Scalia in Abortion, Religion Cases": Greg Stohr of Bloomberg News provides this interesting report, based in part on Stohr's recent interview with Justice Samuel A. Alito, Jr.
Posted at 07:35 AM by Howard Bashman

Thursday, January 31, 2008

The U.S. Supreme Court's ruling in favor of Philip Morris in Philip Morris USA v. Williams may not have helped Philip Morris much in Oregon today, but the ruling did help Philip Morris in California yesterday: The new blog "California Punitive Damages" provides this post about a California Court of Appeal ruling, issued yesterday, that set aside a $28 million punitive damages award against Philip Morris based on the U.S. Supreme Court's February 2007 ruling in the case out of Oregon.

And an even more recent post at that blog opines that the result of today's Oregon Supreme Court decision against Philip Morris, holding under Oregon law that a partially valid proposed jury instruction can be rejected if the instruction is also partially invalid, would not be reached by a court that was applying California law.
Posted at 10:35 PM by Howard Bashman

"Senate Panel Approves Judicial Pay Raise And Junkets Ban": Lawrence Hurley of The Daily Journal of California has this post at his "Washington Briefs" blog.
Posted at 10:20 PM by Howard Bashman

"NJ Supreme Court justice Rivera-Soto sued": The Newark (N.J.) Star-Ledger provides a news update that begins, "A former star high school football player sued state Supreme Court Justice Roberto Rivera-Soto today, alleging the associate justice wielded the considerable prestige of his robe against him because of a running dispute on the gridiron with Rivera-Soto's son."

And The Associated Press reports that "Teen sues NJ Supreme Court justice over actions in dispute with son."
Posted at 07:55 PM by Howard Bashman

"Ala. Inmate Wins Stay of Execution": The Associated Press provides this report.
Posted at 07:52 PM by Howard Bashman

"A guide to 'Selyaisms'": Frederick A. Brodie, a former law clerk to First Circuit Judge Bruce M. Seyla, has this essay in the current issue of The National Law Journal.
Posted at 04:58 PM by Howard Bashman

Next will the Sixth Circuit permit Tennessee to sue the North Carolina Valley Authority? Today, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed a federal district court's decision that refused to dismiss North Carolina's common-law nuisance action against the Tennessee Valley Authority. The lawsuit contends that the TVA's coal-fired power plants in Tennessee, Alabama, and Kentucky emit various pollutants that travel through the atmosphere into North Carolina, adversely impacting human health and environmental quality. You can access today's Fourth Circuit ruling at this link.
Posted at 04:55 PM by Howard Bashman

If you don't want your children in kindergarten, first, or second grades to be exposed to books that favorably portray same-sex couples, then don't send your children to public school: So holds the U.S. Court of Appeals for the First Circuit in this ruling that a unanimous three-judge panel issued today.
Posted at 04:22 PM by Howard Bashman

The cost to Philip Morris of trying to slant jury instructions too far in its favor -- $79.5 million in punitive damages: As I first noted in this post from this morning, today the Supreme Court of Oregon issued its ruling, on remand from the Supreme Court of the United States, in Williams v. Philip Morris Inc. Although Philip Morris had won before the U.S. Supreme Court, today's ruling by Oregon's highest court reinstates a jury's award of $79.5 million in punitive damages, on top of a compensatory damages award of $821,000, against Philip Morris and in favor of a cigarette smoker's widow. How could this be?

When Philip Morris most recently brought this case to the U.S. Supreme Court, the company asked the U.S. Supreme Court to consider two objections to the punitive damages award. First, Philip Morris advanced a procedural due process challenge, asserting that that a defendant's due process rights are violated if a jury assesses punitive damages to punish a defendant for having caused harm to persons other than the plaintiff. And second, Philip Morris advanced a substantive due process challenge, asserting that the punitive damages award was unconstitutionally excessive because, among other reasons, it was nearly one hundred times larger than the award of compensatory damages.

When the U.S. Supreme Court issued its 5-4 ruling in February 2007, the Court agreed with Philip Morris's procedural due process argument. The Court held that a defendant's due process rights are violated if a jury assesses punitive damages to punish a defendant for having caused harm to persons other than the plaintiff. As a result, the U.S. Supreme Court found it unnecessary to address the company's substantive due process challenge to the punitive damages award as unconstitutionally excessive.

Philip Morris had sought to preserve its procedural due process objection, which the U.S. Supreme Court recognized as meritorious, by means of a proposed jury instruction. Today, the Supreme Court of Oregon, acting on remand from the U.S. Supreme Court, held that the trial court properly refused to deliver to the jury Philip Morris's proposed jury instruction because it misstated Oregon's law of punitive damages in various other respects. Under Oregon law, a party has no right to have a trial court deliver its proposed jury instruction unless the instruction is entirely unobjectionable. Philip Morris's proposed jury instruction was far from entirely unobjectionable, according to Oregon's highest court, and therefore Philip Morris has no one to blame other than itself (and its trial lawyers) for failing to have its procedural due process rights vindicated in accordance with the U.S. Supreme Court's February 2007 ruling.

Let's assume, as is most likely the case, that today's Supreme Court of Oregon decision constitutes an adequate and independent state law ground that will prevent Philip Morris from benefiting from the U.S. Supreme Court's February 2007 procedural due process ruling in Philip Morris's favor. This still leaves the company with the ability to pursue its substantive due process challenge to the punitive damages award as unconstitutionally excessive. Remember that the U.S. Supreme Court had originally granted certiorari to review that question but then found it unnecessary to resolve.

For better or worse, today's Supreme Court of Oregon ruling has likely transformed this case into an unattractive vehicle for U.S. Supreme Court review on the substantive due process question of the unconstitutional excessiveness of punitive damages. My reasoning proceeds as follows. To determine whether a punitive damages award is unconstitutionally excessive, one must consider the evidence that was before the fact-finder. Here, due to Philip Morris's failure to tender a valid punitive damages instruction, Philip Morris has forfeited any ability to object to the jury's consideration, in assessing punitive damages, of the harm that Philip Morris caused to Oregon smokers other than the plaintiff. Determining whether this particular punitive damages award is unconstitutionally excessive will require the U.S. Supreme Court to weigh a type of evidence that, as a result of its earlier ruling in this very case, other juries deciding whether to award punitive damages won't ever be considering. Thus, a substantive due process ruling in this case would amount to little more than error correction and would be unlikely to result in a ruling of widespread application to other cases.

Even though this case may no longer present an attractive vehicle for examining the substantive due process limits of excessive punitive damages, Philip Morris can still hope that the U.S. Supreme Court, before it gets around to denying the company's forthcoming cert. petition, will decide or agree to decide another case presenting a substantive due process challenge to excessive punitive damages. Unfortunately for Philip Morris, the U.S. Supreme Court turned down this issue in the Exxon Valdez case.

In closing, to return to the title of this post, it is worth emphasizing that the reason Philip Morris failed to benefit from the U.S. Supreme Court's punitive damages ruling in its favor in this very case is that the trial lawyers for Philip Morris tried to slant their proposed punitive damages instruction too far in defendant's favor. Had the company's proposed punitive damages instruction faithfully tracked the applicable Oregon statute, today's Supreme Court of Oregon ruling would have likely set aside the jury's punitive damages award and granted a new trial. So, to you young litigation associates pondering how far you should twist the law in your client's favor in proposed jury instructions, remember: attempting to gain your client some subtle, modest advantage could backfire and someday cause your client to lost its ability to overturn a nearly $80 million punitive damages award.

Elsewhere, Ashbel S. Green of The Oregonian (with whom I had the pleasure of speaking about this case a bit earlier today) has a news update headlined "Oregon Supreme Court backs $79.5 million award; The judgment against Philip Morris had been overturned twice."

The Associated Press reports that "Oregon high court reaffirms decision in Philip Morris case."

At "The BLT: The Blog of Legal Times," Tony Mauro has a post titled "Oregon Supreme Court to U.S. Supreme Court: Thanks, But No Thanks."

And Eric Turkewitz, at the "New York Personal Injury Law Blog," has a post titled "Philip Morris $79.5M Punitive Award Reinstated By Oregon High Court."
Posted at 03:57 PM by Howard Bashman

Ninth Circuit grants rehearing en banc to consider the constitutionality of a school's strip-search of a 13-year-old female honor roll student with no prior disciplinary problems based on the allegation she had given a classmate a prescription-strength ibuprofen tablet: You can access at this link today's order granting rehearing en banc.

A divided three-judge panel upheld the constitutionality of the search in a decision issued on September 21, 2007. My coverage of that decision appeared at this link.
Posted at 02:23 PM by Howard Bashman

The Associated Press is reporting: Now available online are articles headlined "Ala. Execution Could Be First in Months" and "Court Rules for TiVo in Patent Dispute."
Posted at 02:12 PM by Howard Bashman

Pending amendments to the Federal Rules of Appellate Procedure -- who has commented thus far? Yesterday, I had this rather lengthy post describing the proposed amendments -- now up for public comment -- to the Federal Rules of Appellate Procedure. Next Monday's installment of my "On Appeal" column for law.com will also discuss these proposed amendments.

My post from yesterday described how to submit public comments, but I neglected to note that you can access online, via this link, the comments received thus far pertaining to the proposed FRAP amendments. (Comments on amendments to the other federal procedural rules now up for discussion can be accessed via this link.) Of the handful of comments received thus far on the proposed FRAP amendments, I nominate the comments of Seventh Circuit Chief Judge Frank H. Easterbrook as most entertaining.
Posted at 12:20 PM by Howard Bashman

U.S. Court of Appeals for the Federal Circuit affirms $74 million patent infringement award in favor of TiVo, Inc. and against EchoStar: If the TiVo smiley face logo seems a bit happier than usual, it may be as a result of this ruling issued today.
Posted at 12:10 PM by Howard Bashman

"Court upholds $79.5 million smoker verdict": Ashbel S. Green of The Oregonian provides this news update. My most recent coverage appears immediately below.
Posted at 12:00 PM by Howard Bashman

On remand from the U.S. Supreme Court, the Supreme Court of Oregon once again upholds a jury's award of $79.5 million in punitive damages, on top of a compensatory damages award of $821,000, against Philip Morris and in favor of a cigarette smoker's widow: You can access today's ruling at this link. It is inevitable that Philip Morris will again seek U.S. Supreme Court review.

The U.S. Supreme Court's February 2007 ruling in the case can be accessed here. For the record, my prediction of what Oregon's highest court would do today was wrong.
Posted at 11:32 AM by Howard Bashman

"Thank You. Now Go to Hell. Mukasey stonewalls Senate Democrats on water-boarding, and practically everything else." Dahlia Lithwick has this dispatch online at Slate.
Posted at 09:20 AM by Howard Bashman

"Abortion provider must turn over files; Opponents hope the patient records will lead to additional charges against the Kansas doctor who performs late-term procedures": This article appears today in The Los Angeles Times.

The Wichita Eagle reports today that "Tiller must turn over records to grand jury."

And The Washington Times reports that "Clinic must release abortion data."
Posted at 09:10 AM by Howard Bashman

"Mukasey Will Not Rule Out Waterboarding": The New York Times contains this article today, along with an editorial entitled "A Disappointing Debut."

The Washington Post reports today that "Mukasey Hints at Wider CIA Probe."

The Los Angeles Times reports that "Democrats decry Mukasey's silence on waterboarding; The Senate Judiciary Committee members say the attorney general's refusal to give a legal opinion is an effort to protect the Bush administration."

The Hill reports that "Democrats grill Mukasey."

The Washington Times reports that "Mukasey still mum on waterboarding."

The Wall Street Journal contains an article headlined "Three Young Men Try Waterboarding And Tell the Tale" and an editorial entitled "'Waterboarding' Mukasey."

And from National Public Radio, today's broadcast of "Morning Edition" contained an audio segment entitled "Mukasey, Senators Revisit Torture Debate." Yesterday evening's broadcast of "All Things Considered" contained an audio segment entitled "Mukasey Dodges Senate Panel's Torture Questions." And yesterday's broadcast of "Day to Day" contained an audio segment entitled "What to Expect from Mukasey" featuring Dahlia Lithwick. RealPlayer is required to launch these audio segments.

C-SPAN has made available for on-demand viewing in two parts (morning session and afternoon session) (RealPlayer required) the Attorney General's testimony yesterday before the Senate Judiciary Committee.
Posted at 08:55 AM by Howard Bashman

"Better Pay for Federal Judges: To ensure a good deal for the public, the new pay package should include an overdue tightening of the gift rules to bar corporate-sponsored junkets." This editorial appears today in The New York Times.
Posted at 08:34 AM by Howard Bashman

"Law Without Suits: New Hires Flout Tradition; Young Attorneys' Casual Attire Draws Criticism at Big Firms; A Crackdown on Ugg Boots." The Wall Street Journal contains this article today.
Posted at 08:27 AM by Howard Bashman

"Snipes' jury still deliberating": This article appears today in The Ocala Star-Banner.
Posted at 08:10 AM by Howard Bashman

"Nichols case needs a judge": Today's edition of The Atlanta Journal-Constitution contains an article that begins, "The judge who will appoint a replacement for Superior Court Judge Hilton Fuller, who resigned Wednesday from the beleaguered case of courthouse rampage suspect Brian Nichols, said he hopes to name a jurist within days but may have trouble finding someone willing to take the case." The newspaper also reports today that "Nichols judge both praised, faulted."

The New York Times reports today that "Judge in Courthouse Shooting Case Steps Down."

The Los Angeles Times reports that "Quote prompts judge to quit case; After being quoted in a magazine article as saying of defendant, 'Everyone in the world knows he did it,' a jurist recuses himself from a murder trial."

And the Fulton County Daily Report contains an article headlined "Judge Recuses From Courthouse Shooting Trial Following Remarks in Magazine Article."

For more on why the judge stepped down from the case, see this earlier post from yesterday.
Posted at 08:05 AM by Howard Bashman

"More Wecht staffers testify about go-fer work": This article appears today in The Pittsburgh Post-Gazette.

And today in The Pittsburgh Tribune-Review, Jason Cato reports that "Errand kept body unretrieved, witness says."
Posted at 08:03 AM by Howard Bashman

"Signs of trouble in Medina finances; Records show judge tapped all his home's equity": The Houston Chronicle today contains an article that begins, "An investigation into a suspicious fire that destroyed the home of Texas Supreme Court Justice David Medina brought unprecedented scrutiny of his life: from cell phone calls to bank records to personal relationships to the whereabouts of family members on the night in question."
Posted at 07:58 AM by Howard Bashman

"An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court": Jason J. Czarnezki, William K. Ford, and Lori A. Ringhand have posted this paper (abstract with links for download) at SSRN (via "Legal Theory Blog").

The article's abstract begins, "Despite the high degree of interest generated by Supreme Court confirmation hearings, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their voting behavior once on the Supreme Court. This paper begins to explore this potentially rich area by examining confirmation statements made by nominees regarding three different methods of constitutional interpretation."
Posted at 07:50 AM by Howard Bashman

"Barack Obama, Hillary Clinton, and the Debate Over How Much Supreme Court Decisions Truly Matter": Edward Lazarus has this essay online at FindLaw.
Posted at 07:30 AM by Howard Bashman

Wednesday, January 30, 2008

"Jury to Start Deliberations in Wesley Snipes Tax Case": This article appears today in The New York Times.

And The Ocala Star-Banner reports today that "Wesley Snipes' fate now in hands of jury; Actor says 'I look forward to walking out of here.'" The newspaper also provides an update headlined "Jury asks judge in Snipes trial: What does 'conspiracy' mean?"
Posted at 11:54 PM by Howard Bashman

"Thomas Barr, Top Lawyer in I.B.M. Case, Dies at 77": Adam Liptak is the author of this obituary that appears today in The New York Times.
Posted at 11:50 PM by Howard Bashman

"Court Hears Appeal in Iraq Ambush Case": The Associated Press provides a report that begins, "Relatives of civilian truck drivers killed in Iraq emerged from a closed-door hearing Wednesday hopeful that a federal appeals court would resurrect their cases against a military contractor." Today's oral argument before the U.S. Court of Appeals for the Fifth Circuit was not open to the public or the press.
Posted at 11:45 PM by Howard Bashman

"Oregon high court to rule (again) on smoker-death case": Ashbel S. Green of The Oregonian provides a news update that begins, "The Oregon Supreme will decide tomorrow what to do with a $79.5 million punitive damage award against Philip Morris that has twice been overturned by the U.S. Supreme Court."

The Supreme Court of Oregon's ruling should become available online via this link by noon tomorrow.

You can access the U.S. Supreme Court's February 2007 ruling in the case at this link. Shortly after that ruling issued, law.com published an installment of my "On Appeal" column headlined "'Philip Morris' Punitives Ruling May Contain Silver Lining for Plaintiffs." It is unlikely that the Philip Morris ruling will contain a silver lining for this particular plaintiff, however. Rather, there's a strong likelihood that she will need to present her punitive damages claim to a new jury, which will not be allowed to consider one of the key arguments that likely caused the first jury to award $79.5 million in punitive damages on top of a compensatory damages award of $821,000.
Posted at 08:14 PM by Howard Bashman

"Federal recusal case: $160,000 and 'the meter still is running.'" The West Virginia Record provides a report that begins, "The state Supreme Court of Appeals has spent more than $160,000 on a federal court case Massey Energy brought against it over the way justices recuse themselves from cases."
Posted at 07:54 PM by Howard Bashman

"Retired US worker becomes champion of women's fair pay": Agence France Presse has a report that begins, "Ten years ago, someone slipped an anonymous note into Lilly Ledbetter's locker and the tire factory worker learned that she was being paid less than her male counterparts who were doing the same work. Ledbetter took her case all the way to the US Supreme Court, but never received compensation. Today, she is leading the charge to change the laws that allow men to be paid more than women who do the same work."

And The New York Times today contains an editorial entitled "Restoring Civil Rights."
Posted at 07:52 PM by Howard Bashman

"Law lecture features Supreme Court’s Breyer": Arizona State University's Sandra Day O'Connor College of Law issued this news release today.
Posted at 07:50 PM by Howard Bashman

"Colins Nominated By Governor To Pennsylvania Supreme Court": This article appears today in The Philadelphia Bulletin.
Posted at 07:45 PM by Howard Bashman

"Court rejects Nazi guard Demjanjuk's appeal": Reuters provides this report.

My earlier coverage of today's Sixth Circuit ruling appears at this link.
Posted at 07:44 PM by Howard Bashman

"Pakistani Justice Breaks Silence": Thursday's edition of The New York Times will contain an article that begins, "Iftikhar Muhammad Chaudhry, the former chief justice of Pakistan who was removed last year when President Pervez Musharraf imposed a state of emergency, has finally broken his silence."
Posted at 07:42 PM by Howard Bashman

"Judges on Industry-Backed Group's Board": Mark Sherman of The Associated Press has a report that begins, "A federal judge has resigned from the board of a corporate-funded group that provides free seminars and trips to judges after a judicial ethics panel recommended he quit. Two other judges remain on the board, either unaware of the ethics advice or unconcerned by it. U.S. District Judge Andre Davis of Baltimore said he resigned from the board of the Montana-based Foundation for Research on Economics and the Environment soon after he received a private opinion from the federal judiciary's Codes of Conduct Committee."

The organization Community Rights Counsel issued this news release today. Also today, that organization sent this letter to the chair of the federal Judicial Conference's Committee on Codes of Conduct based, at least in part, on this transcript excerpt. And later today, the chair of that committee issued this response.
Posted at 06:05 PM by Howard Bashman

"Court Rejects Buddhists' Temple": Lynne Tuohy of The Hartford Courant has a news update that begins, "The state Supreme Court Wednesday unanimously rejected the legal arguments and efforts by the Cambodian Buddhist Society of Connecticut to build a temple on 10 acres they own in Newtown."

You can access today's ruling of the Supreme Court of Connecticut at this link.
Posted at 05:55 PM by Howard Bashman

"Judge in courthouse shooting case stepping down": The Atlanta Journal-Constitution provides a news update that begins, "The trial judge in the beleaguered death penalty case of Fulton County Courthouse rampage suspect Brian Nichols announced Wednesday he is removing himself from the case. Superior Court Judge Hilton Fuller's decision came just one day after he was quoted in an article on the New Yorker's Web site about why Nichols plans to use a mental health defense: 'That's their only defense, because everyone in the world knows he did it.'"

And The Associated Press reports that "Ga. Courthouse Shooting Judge Steps Down."

You can access Jeffrey Toobin's article about the case, which appears in the current issue of The New Yorker, here (HTML) and here (PDF).
Posted at 04:52 PM by Howard Bashman

February 15, 2008 is the deadline for commenting on various proposed amendments to the Federal Rules of Appellate Procedure: The law professor who now serves as reporter for the federal judiciary's Advisory Committee on Appellate Rules sent me an email yesterday asking that I draw that deadline and these proposed amendments to the attention of this blog's readers.

In her email, she writes:

In particular, I thought it would be useful to draw your readers' attention to two sets of proposals.
One is the set of Appellate Rules proposals, which include, inter alia, a proposal for a new Appellate Rule 12.1 that sets forth procedures to be followed when a district court is asked for relief that it lacks authority to grant because an appeal is pending. The other set of proposals that I'd like to mention concerns the method for computing time under the Appellate, Bankruptcy, Civil and Criminal Rules.
In brief, the principal time-computation proposal is to adopt a "days-are-days" approach to computing all periods of time, including short time periods. Under the current rules, intermediate weekends and holidays are omitted when computing short time periods but included when computing longer periods. By contrast, under the new proposal, intermediate weekends and holidays are counted no matter the length of the specified period.
The project has been published for comment as proposed amendments to Appellate Rule 26(a), Bankruptcy Rule 9006(a), Civil Rule 6(a), and Criminal Rule 45(a). Also published for comment are proposed amendments to numerous deadlines set by the Appellate, Bankruptcy, Civil and Criminal Rules; the goal of those amendments is to offset the effect of the change in time-counting approach by lengthening most short rule-based deadlines.
In large measure, the rules-provided deadlines have been sufficiently lengthened to make the change to a days-are-days approach neutral to practitioners; moreover, in a few notable instances -- such as the proposal to lengthen the current 10-day deadlines in Civil Rules 50, 52, and 59(b), (d) and (e) to 30 days -- the deadlines proposals will give practitioners significantly more time than they now have.
The new time-computation rules will govern a number of statutory deadlines that do not themselves provide a method for computing time, and so one of the project's current goals is to identify key statutory deadlines that the Standing Committee should recommend that Congress lengthen in order to offset the change in time-computation approach.
Your readers' comments on any and all aspects of the proposals would be appreciated. Comments can be submitted electronically to Rules_Comments@ao.uscourts.gov.

The proposed creation of FRAP 12.1 and other amendments that do not principally relate to the calculation of time under the rules can be accessed by clicking here. Rule changes that relate principally to calculations of time under the Federal Rules of Appellate Procedure can be accessed by clicking here.

As Cathie's email notes, amendments have also been proposed to the Federal Rules of Civil Procedure to expand, from 10 days to 30 days, the time in which to make post-judgment motions for judgment as a matter of law, for a new trial, to alter a trial judge's non-jury findings of fact, and to alter or amend the judgment. These changes will likely also be of great significance to attorneys who handle appeals in federal court in civil cases. You can view these proposed amendments to the FRCP by clicking here.

As noted above, the deadline for submitting comments pertaining to these proposed rule changes is February 15, 2008, and comments may be submitted via email. Before submitting a comment, you can consider suggestions about how to submit an effective comment. All of the pending proposed rule changes to the federal Appellate, Bankruptcy, Civil, and Criminal Rules that are now subject to public comment can be accessed via this link (scroll down).
Posted at 04:40 PM by Howard Bashman

"For Yale Law School, conflicting narratives": The Yale Daily News today contains an article that begins, "In court, Padilla v. Yoo is a lawsuit about human rights and the Constitution. But in headlines and in the blogosphere, it looks more like a case about Yale."
Posted at 03:20 PM by Howard Bashman

"11th Circuit lifts stay of execution for Alabama inmate": The AP provides a report that begins, "A federal appeals court has lifted a stay of execution for James Harvey Callahan, who is scheduled to be executed Thursday, but it could be delayed again by the U.S. Supreme Court. The Supreme Court has agreed to hear oral arguments in a Kentucky challenge to lethal injection, a case that has delayed executions nationwide. Alabama uses lethal injection in its executions. In a 2-1 decision, the Atlanta-based 11th U.S. Circuit Court of Appeals on Tuesday lifted the stay granted by U.S. District Judge Keith Watkins in Montgomery on Dec. 14. The court said Callahan waited too late to challenge the method of execution."

You can access today's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 02:40 PM by Howard Bashman

"Mukasey Refuses to Judge Waterboarding": Lara Jakes Jordan of The Associated Press has this updated report.

You can view the Attorney General's Senate Judiciary Committee testimony live via C-SPAN using either RealPlayer or Windows Media Player.
Posted at 12:00 PM by Howard Bashman

"Electing judges -- with cash: Merit, not money, should sway judicial elections." Cornell Law student Cody Corliss has this op-ed today in The Christian Science Monitor.
Posted at 11:55 AM by Howard Bashman

"Court Denies Alleged Nazi Guard's Appeal": The Associated Press provides a report that begins, "A federal appeals court on Wednesday rejected an alleged Nazi death camp guard's challenge to a final deportation order by the nation's chief immigration judge. A panel of the 6th U.S. Circuit Court of Appeals ruled there was no basis to John Demjanjuk's challenge of a December 2005 ruling that he could be deported to his native Ukraine or to Germany or Poland."

You can access today's ruling of the U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 11:54 AM by Howard Bashman

"Judge won't suppress statements by suspect in obscenity case": The Pittsburgh Post-Gazette today contains an article that begins, "A federal judge yesterday denied a motion to suppress statements made by a Donora woman charged with transmitting obscene materials. Karen Fletcher, 56, is charged with six counts of sending lewd stories, depicting the rape and killing of children, on the Internet. Ms. Fletcher ran what was known as the 'Red Rose' Web site, where she posted her fictional stories."

What makes this case unusual is that the alleged obscenity in question consists entirely of text, unaccompanied by any allegedly obscene images. The October 9, 2006 installment of my "On Appeal" column for law.com was headlined "Text This: Words Alone Can Violate Federal Obscenity Laws."
Posted at 07:58 AM by Howard Bashman

"Mukasey Offers View on Waterboarding": This article appears today in The New York Times.

The Washington Post reports today that "Mukasey Holds Back on Torture Issue; Attorney General Won't Offer Senate Panel Definitive Opinion on Waterboarding."

The Los Angeles Times contains an article headlined "Is waterboarding torture? Mukasey's still not ready to say; The attorney general says whether the technique is legal is 'not an easy question'; He will face a Senate committee today."

Lara Jakes Jordan of The Associated Press reports that "Mukasey Refuses to Judge Waterboarding."

Reuters reports that "US law chief, Democrats face clash on waterboarding."

And CQ Today reports that "Democrats Warn That Justice Nominees Are Hindered by Mukasey Silence."

At the "Balkinization" blog, Marty Lederman has a post titled "Torture: 'Reasonable People' Can Disagree."
Posted at 07:52 AM by Howard Bashman

"Rendell's pick for judge draws Republicans' ire": The Philadelphia Inquirer contains this article today.

And The Pittsburgh Tribune-Review reports today that "Duquesne professor tapped for judgeship."
Posted at 07:47 AM by Howard Bashman

"Cadavers wrongly went to Carlow, former aide says in Wecht case": This article appears today in The Pittsburgh Post-Gazette.

And The Pittsburgh Tribune-Review today contains articles headlined "'Reaper Wear' sold from morgue" and "Students embalmed donated bodies: witness." Reporter Jason Cato will provides updates from the trial throughout the day at this link.
Posted at 07:38 AM by Howard Bashman

"Judge 'Thinking Very Hard' About Lynne Stewart Case": Joseph Goldstein has this article today in The New York Sun.

And The New York Daily News reports today that "Judge's light term for terror lawyer Lynne Stewart ripped."
Posted at 06:45 AM by Howard Bashman

Tuesday, January 29, 2008

"The Items Were Worth $177": Syndicated columnist James J. Kilpatrick has an essay that begins, "The Supreme Court splendidly split last week in the Case of the Missing Prayer Rug. By all the usual criteria, it was a nuthin' case -- a case of minimal public interest, tossed over to Justice Clarence Thomas for another ho-hum opinion. I'm writing about it for a reason."

Kilpatrick, who is now 87 years of age, announces in this essay that "With this column, I retire from writing about the Supreme Court." He will continue to write a weekly column about the English language.
Posted at 11:12 PM by Howard Bashman

"2nd Circuit Considers Intent, Knowledge in Lynne Stewart Case; Federal appeals court judges pepper defense with questions; attorney repeatedly cites 'Brandenburg' Supreme Court case": law.com provides this report.

And The Associated Press provides a report headlined "Prosecutor to appeals court: NYC lawyer got 'slap on the wrist.'"
Posted at 11:05 PM by Howard Bashman

"Wecht trial: Aide says cadavers wrongly went to Carlow." The Pittsburgh Post-Gazette provides this news update.
Posted at 11:04 PM by Howard Bashman

"'Travesty of justice' prompts protest; A dangerous line was crossed when prosecutor succeeded in getting defense attorneys changed in Pike death penalty case, lawyers say": Bill Rankin had this article yesterday in The Atlanta Journal-Constitution.
Posted at 11:02 PM by Howard Bashman

"Jefferson wants income, race, education as criteria; Aim is to keep diversity; court trashed old policy": Today's edition of The Louisville Courier-Journal contains an article that begins, "Race, income and education would be considered equally in assigning students and keeping Jefferson County's public schools integrated under a student-assignment plan released yesterday. Seven months after the U.S. Supreme Court threw out the district's desegregation policy because it considered individual students' race in assigning them to schools, Superintendent Sheldon Berman unveiled a new proposal -- checked by the district's lawyers -- that he believes meets the court test."
Posted at 10:58 PM by Howard Bashman

"Two-Year Term Sought for Lawyer in Milberg Conspiracy": Josh Gerstein of The New York Sun has a news update that begins, "Federal prosecutors are seeking a two-year prison term for one of the nation's most successful class-action attorneys, William Lerach."

The Associated Press reports that "2-year prison term recommended for lawyer in kickback scheme."

And Reuters reports that "U.S. prosecutors seek two-year prison term for Lerach."
Posted at 10:45 PM by Howard Bashman

"Alarmist Clock: Let's do away with the legislative fiction of the terrorist alarm clock." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 08:30 PM by Howard Bashman

"Court upholds smoking ban": The Rocky Mountain News provides an update that begins, "The 10th Circuit Court of Appeals upheld Colorado's smoking ban today, dealing a blow to restaurant and bar owners who argued the law is unconstitutional."

And The Denver Post provides a news update headlined "Appeals court upholds smoking ban, DIA exemption."

Currently, the Tenth Circuit's opinion does not appear to be available over the court's web site, but you can access the court's judgment at this link.

Update: The Tenth Circuit has substituted the panel's opinion for that court's judgment at the link that appears immediately above.
Posted at 08:20 PM by Howard Bashman

"9th Circuit deals setback to Costco on wine and beer sales": The Seattle Post-Intelligencer provides this news update.

The Seattle Times provides a news update headlined "Costco loses effort to overturn state liquor laws."

The Wall Street Journal provides a news update headlined "Court Sides With Regulators in Costco Case."

And Reuters reports that "Costco fails to overturn Wash. state liquor rules."

You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 08:04 PM by Howard Bashman

"Rendell nominates Colins to Supreme Court despite GOP objections": The Philadelphia Inquirer provides this news update.

The Associated Press reports that "Rendell names 4 to fill appellate court vacancies."

And you can access a press release headlined "PA Governor Rendell Announces Judicial Nominations for Supreme, Superior and Commonwealth Courts."
Posted at 07:34 PM by Howard Bashman

"Breyer Keeps Up Bush Speech Attendance": Mark Sherman of The Associated Press has a report that begins, "Four Supreme Court justices donned their robes to attend this year's State of the Union, but only one among them could boast a perfect attendance record during the Bush presidency."
Posted at 07:20 PM by Howard Bashman

Programming note: I will be working this afternoon from the office of co-counsel finalizing an appellate brief that is due to be filed tomorrow. Additional posts will appear here later today.
Posted at 11:30 AM by Howard Bashman

"EU Court: Downloaders Can Stay Private." The Associated Press provides a report that begins, "Record labels and film studios cannot demand that telecom companies hand over the names and addresses of people suspected of breaking European copyright rules by swapping illegal downloads, the EU's top court ruled Tuesday."

Reuters reports that "EU court says file sharers don't have to be named."

And BBC News reports that "File-sharers 'need not be named'; Internet service providers do not have to divulge the names of users suspected of illegally sharing music files, Europe's top court has ruled."

You can access today's ruling of the European Court of Justice at this link.
Posted at 10:34 AM by Howard Bashman

"Ruling may aid talent managers; They could be entitled to pay for procuring work for clients, the state high court says": This article appears today in The Los Angeles Times.

My earlier coverage of yesterday's ruling of the Supreme Court of California appears at this link.
Posted at 08:44 AM by Howard Bashman

"Plaintiff-for-hire sentenced; A retired lawyer gets home detention in the Milberg Weiss case": The Los Angeles Times contains this article today.
Posted at 08:40 AM by Howard Bashman

"Justice Dept. accused of blocking Gonzales probe; Office of Special Counsel chief says his investigation into alleged politicization of the attorney general's agency has been repeatedly 'impeded'": This article appears today in The Los Angeles Times.
Posted at 08:37 AM by Howard Bashman

"Greater Use of Privilege Spurs Concern": The Washington Post today contains an article that begins, "The U.S. government has been increasing its use of the state secrets privilege to avoid disclosure of classified information in civil lawsuits, prompting legislation in the Senate that would provide more congressional oversight of the practice."
Posted at 08:17 AM by Howard Bashman

"GOP Unable to Force Vote on Bush Surveillance Bill; Senators Can't Stop Democratic Debate; Current Law Set to Expire Thursday": The Washington Post contains this article today.

And The Wall Street Journal today contains an editorial entitled "Wiretrapped."
Posted at 08:15 AM by Howard Bashman

"'Wecht details' described to jury; On the first day of trial, deputy coroner tells of running errands": This article appears today in The Pittsburgh Post-Gazette.

The Pittsburgh Tribune-Review today contains an article headlined "Corpse van carried hot dogs for Wecht: witness." Reporter Jason Cato will provides updates throughout the day at this link.

And online at the First Amendment Center, Douglas Lee has an essay entitled "3rd Circuit lets sunshine in on famous coroner's trial."
Posted at 08:10 AM by Howard Bashman

"Illegal Globally, Bail for Profit Remains in U.S." Adam Liptak has this article today in The New York Times.
Posted at 08:04 AM by Howard Bashman

"Can a Sandwich Be Slandered?" This article appears today in The New York Times.
Posted at 08:02 AM by Howard Bashman

"Rendell to name Colins as justice": The Philadelphia Inquirer today contains an article that begins, "Gov. Rendell is poised to name former Commonwealth Court Judge James Gardner Colins an interim appointee to the Pennsylvania Supreme Court, over the objection of Senate Republicans who predicted a battle over the nomination. Colins, 61, a Democrat from Philadelphia, was the longest-serving judge in the 37-year history of the intermediate appellate court. He announced in October that he was stepping down to speak out about the need for judicial independence and perhaps to return to practicing law."
Posted at 07:58 AM by Howard Bashman

"Statewide judge race raises heat; GOP candidates for highest criminal court trade barbs": Chuck Lindell has this article today in The Austin American-Statesman.
Posted at 07:55 AM by Howard Bashman

Available online from law.com: An article reports that "5th Circuit to Weigh Jurisdiction Over Contractors in Iraq; Iraq war's outsourcing of military functions poses new legal issues for contractors like KBR and Halliburton, now facing suit."

And in other news, "Former White House Counsel Tapped by N.Y. Chief Judge to Prepare Judicial Pay Suit."
Posted at 07:50 AM by Howard Bashman

"'Choose Life' license plate ruled free speech": Bob Egelko has this article today in The San Francisco Chronicle.

And The Arizona Daily Star reports today that "U.S. appellate court OKs pro-life AZ license plates."

My earlier coverage of yesterday's Ninth Circuit ruling appears at this link.
Posted at 07:48 AM by Howard Bashman

Which U.S. Supreme Court Justices attended last night's State of the Union address? From this photograph, the answer would seem to be the Chief Justice and Justices Anthony M. Kennedy, Stephen G. Breyer, and Samuel A. Alito, Jr.
Posted at 07:44 AM by Howard Bashman

In commentary available online at FindLaw: Douglas W. Kmiec has an essay entitled "Why Congress Must Renew FISA Immediately: If It Dallies, National Security Professionals Will Not Be Able to Protect America From Terrorism in the Interim."

And Anthony J. Sebok has an essay entitled "Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers' Communications?"
Posted at 07:35 AM by Howard Bashman

Monday, January 28, 2008

"Gag order lifted in part" against law blog: The "Southern District of Florida Blog" contains this post from late this afternoon.
Posted at 11:05 PM by Howard Bashman

"Alabama Supreme Court reverses course, offers hope to ill workers": The Associated Press provides a report that begins, "In a 5-4 decision, the Alabama Supreme Court reversed direction and allowed lawsuits from workers who become ill many years after being exposed to dangerous chemicals. The majority said the two-year statute of limitations for filing suit begins to run when an injury manifests itself. That overruled a 1979 decision, where the court said the window for filing suit began to run at the last exposure to the chemicals -- a standard that made it impossible for workers to sue if the illness did not show up for many years."

And the blog "Alabama Appellate Watch" provides this link to the ruling, along with a post titled "Alabama Supreme Court Overrules Garrett v. Raytheon; Claim For Exposure To Toxic Substance Now Accrues When There Is A Manifest Injury."
Posted at 10:57 PM by Howard Bashman

"Verdict in on Talent Agency Act; No clear victory for either side": Variety provides an article that begins, "The California Supreme Court did not hand a clear victory to either side, but managers came out ahead with Monday's much-anticipated decision about the Talent Agency Act."

The Hollywood Reporter reports that "Court rules on Talent Agencies Act."

And The Los Angeles Business Journal reports that "Court Rules for Manager."

You can access today's ruling of the Supreme Court of California at this link.
Posted at 10:47 PM by Howard Bashman

"Gun Shy: Has the Bush administration abandoned gun rights advocates?" Benjamin Wittes has this essay online at The New Republic.

And Jan Crawford Greenburg, at her "Legalities" blog, recently addresed the same question in a post titled ""No Gun Quickdraw."
Posted at 10:42 PM by Howard Bashman

"Looking Anew at Campaign Cash and Elected Judges": You can access tomorrow's installment of Adam Liptak's "Sidebar" column at this link.
Posted at 10:40 PM by Howard Bashman

"John Grisham's Bad Guys Poison Rivers, Buy Judges": Charles Taylor of Bloomberg News provides this book review.

And Tuesday's edition of USA Today will contain a book review headlined "Grisham's 'Appeal' rules harshly on bought elections."
Posted at 10:37 PM by Howard Bashman

"Cases piling up before justices": The San Antonio Express-News on Sunday contained an article that begins, "At a time when the Texas Supreme Court's case backlog has reached record levels, Justice Paul Green was spending Friday driving to Corpus Christi to speak to a group of appeals lawyers."
Posted at 10:24 PM by Howard Bashman

"U.S. and British High Courts Compared; Justice Ruth Bader Ginsburg and Baroness Brenda Hale of Richmond Share Similarities of Serving in Top Judicial Seats": Georgetown University issued this news release today.
Posted at 10:18 PM by Howard Bashman

"Wanted: lawyers to defend accused terrorists." Canwest News Service provides a report that begins, "The federal government is having trouble recruiting an experienced pool of lawyers to work as 'special advocates' on behalf of terror suspects under Canada's security certificate law."
Posted at 10:15 PM by Howard Bashman

"Rendell said to settle on Colins for Pa. high court job": The Associated Press provides a report that begins, "Gov. Ed Rendell is preparing to nominate a former Commonwealth Court judge to fill a vacant spot on the state Supreme Court, according to the judge and legislative officials who were briefed Monday by the governor's aides. Judge James Gardner Colins, reached by telephone, said he believes his nomination may face some opposition in the Senate, but was confident he will ultimately be confirmed."
Posted at 10:14 PM by Howard Bashman

"Did McCain take a swipe at Alito?" Today at "The Swamp" blog of The Chicago Tribune, James Oliphant had this post, along with a post titled "More on McCain and Alito." You can read John Fund's column, which raised this issue today, at this link.
Posted at 10:10 PM by Howard Bashman

"Court OKs 'Choose Life' license plates in Arizona": Bob Egelko of The San Francisco Chronicle provides this news update.

The Arizona Daily Star provides a news update headlined "Court OKs anti-abortion license plates for Arizona vehicles."

The Associated Press reports that "Court rules Arizona must allow 'choose life' license plate."

And Reuters reports that "Anti-abortion slogan OK'd on Arizona license plates."

My earlier coverage of today's Ninth Circuit ruling appears at this link.
Posted at 09:00 PM by Howard Bashman

"Wecht trial: Aide says staff regularly ran errands." The Pittsburgh Post-Gazette provides this news update.
Posted at 08:50 PM by Howard Bashman

If a district court incorrectly instructs the jury on how to calculate damages, and the jury compounds the error by returning a verdict for a larger amount of damages than the erroneous instruction would permit, what is a federal appellate court to do? Today, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit addresses whether the correct remedy is a remittitur, thereby reducing the damages down to the maximum amount that could have been awarded under the erroneous but unobjected-to instruction, or a new trial with a proper instruction on calculating damages.

The court's opinion, written by Circuit Judge Ed Carnes, holds that a new trial is necessary. In the course of reaching that conclusion, he has the pleasure of considering whether to apply the legal doctrine "known by the delightful title of the 'tipsy coachman.'"
Posted at 08:45 PM by Howard Bashman

Kenneth S. Geller argues FLSA class action aribtration appeal for Long John Silver's, and loses: Here's hoping that the seafood preparing pirate understands the unfavorable standard of review applicable to appeals from an arbitrator's rulings. You can access today's decision of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 08:30 PM by Howard Bashman

E-commerce and personal jurisdiction: In a case involving allegations of copyright infringement via eBay, no less. Circuit Judge Neil M. Gorsuch issued this interesting opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit.
Posted at 06:00 PM by Howard Bashman

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