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Appellate Law and Practice 
Daily summaries of appellate cases from federal circuit courts of appeal. On the weekends, the blog provides appellate practice tips and book reviews.
Post Frequency: 1.8/day Last Entry: December 10, 2008 at 16:15:09 Recent Entries: 612
Go to Appellate Law and Practice, find other Appellate Law blogs, or browse all law blogs.
Giving it up.
Posted on December 10, 2008I am going to be discontinuing my participation in this blog in the next week or so. If you want someone to blame, blame 1) non-lawyers; 2) furries; and 3) the victims rights/tort reform industry.
CA1: large law firm loses case on behalf of client
Posted on December 08, 2008US Securities & Exch v. Tambone, No. 07-1384. This is a close case. On the one hand, the government is bringing an enforcement action regarding misleading prospectuses to sell mutual funds. On the other hand, the defendants are represented by...
CA1: It?s official. Everything is mail fraud.
Posted on December 08, 2008US v. Hebshie, 07-2339 (12/4/08). This is a federal arson case. As you know, the framers of the constitution really envisioned the federal government prosecuting insurance fraud (or, as they say, ?mail fraud?). The first says that pretty much any...
CA1: no preemption where no conflict ? just assistance
Posted on December 08, 2008Fitzgerald v. Harris, No. 08-1306 (12/5/08) holds that the Allagash Wilderness Waterway ("AWW"), Me. Rev. Stat. Ann. tit. 12, § 1882 is not preempted by the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.C. § 1271 et seq (which they...
CA1: Drinking and driving isn?t accepting responsibility
Posted on December 08, 2008U.S. v. Jordan, No. 08-1432 (12/5/08). The defendant committed some criminal acts while out on bail ? namely drinking and driving. At sentencing, the District Court denied an offense level reduction under § 3E1.1 based on his putative acceptance of...
Programming note
Posted on December 05, 2008Due to work and illness I have fallen a day or so behind. I should catch up this weekend. However, because of the constant insults from furries and their allies, ?The Tort Reformers? I am considering ceasing this project.
CA1: proper punishment for a stalker that refused to retain a lawyer before not paying taxes
Posted on December 01, 2008USA v. Steirhoff, 08-1183. Selya tries to be dramatic. He says ?The tale of how the stalker became the stalked follows.? Anyway, the defendant seems like a bad guy because he talked to the police without a lawyer. And he...
CA1: what to do about a shooting of a mentally ill person
Posted on November 29, 2008Est. of D. Bennett v. Wainwright, No. 07-2169. Mentally ill guy off his meds shoots at some cops. Mentally ill guy gets shot by cops. There issues here of notes. The estate appeared to make a ?loss of consortium? argument,...
CA1: surprise! creating false invoices to defraud Uncle Sam is corrupt
Posted on November 29, 2008U.S. v. Marek, No. 07-2437 (11/26/08). This is sort of interesting. There was an audit by the IRS. The defendants appeared to participate in the audit in good faith. Problem was that they went so far as to procure back-dated...
CA1: making non-lawyers step outside hotel rooms okay
Posted on November 26, 2008US v. Parker, No. 07-2776. This is some kind of fight between drug dealers, so the First is going to have little sympathy for them. So, being asked to step outside one?s hotel room is not considered a ?seizure.? Strangely,...
Can you say this without giggling?
Posted on November 24, 2008Second, the Commission concluded that the broadcast of Jackson?s exposed breast was shocking and pandering.At least eight government attorneys can, and they put it on p. 8 of the petition for cert. in the Janet Jackson case.
CA1: Plea waiver enforceable
Posted on November 24, 2008US v. Acosta-Roman, Nos. 07-1238, 07-1239 dismisses an appeal based on an appeal waiver. The defendant argued that because an enhancement wasn?t a condition of the agreement, that the issue can still be raised. But, the First looks at the...
CA1: laches and holocaust painting case
Posted on November 19, 2008Vineberg v. Bissonnette, No. 08-1136. This is a holocaust case. The Nazis forced someone to give up a painting because they were not German enough (strangely this sounds like some of the rhetoric I heard in the last election). Eventually...
CA1: data-mined prescription information not protected speech
Posted on November 18, 2008IMS Health, Inc. v. Ayotte, No. 07-1945. This is a big case. Essentially pharmaceutical salespeople were using doctors prescription histories (in databases) to generate sales leads and shape their sales pitches. Then, New Hampshire said that was a bad idea...
CA1: Medicare fight over research ends in heroic victory for government
Posted on November 17, 2008RI Hospital v. Leavitt, No. 07-2673. There is a medicare reimbursement fight. Essentially, teaching hospitals get paid more for the procedures they perform, because everyone seems to agree that it costs more to run a hospital that teaches. The question...
CA1: moody teens, ERISA, and shortening the limitations period
Posted on November 14, 2008Island View Residential Treatment Center et al v. Blue Cross Blue Shield of Massachusetts, 08-1287. Okay, before I begin, I gotta get something off my chest: I am sorry for what I said about the people that are both partners...
CA1: Girl interrupted was ?molested? not ?exploited?
Posted on November 14, 2008National Union Fire v. West Lake Academy, Nos. 07-2190, 07-2204 (11/13/08). This is a fun insurance coverage case. It is pretty rare that case begins with the words ?Fourth-party plaintiff Jane Doe (?Doe?)). Westlake Academy is one of those places...
CA1: The District Court acted just too jerky in dismissing the complaint
Posted on November 10, 2008Linares v. U.S., No. 08-1548. This is an FTCA case. However, it degenerated into a fight over ECF. For some reason some (perhaps most) courts require that the parties provide the court with paper copies of electronic filings. I never...
CA1: vindicative license revocation okay due to preclusion
Posted on November 10, 2008Giragosian v. Ryan, No. 08-1067. One upon a time there once was a gun shop that would give lessons in the sports of shotting-stuffs-man-ship. While being taught the art of shooting, a customer committed suicide. The police chief revoked his...
CA1: declaratory judgments not that preclusive
Posted on November 10, 2008Andrew Robinson v. Hartford Fire, No. 08-1255. This is an insurance coverage dispute. It would be interesting if this area of practice had more dedicated lawyers, but everyone I meet in it seems obsessed with non-law stuff and does not...
A need for headlines?
Posted on November 09, 2008Dear AL&P, I missed the headlines on Wednesday, but I have a lay-person newspaper fetish. Is there some way that I can look at the headlines from newspapers aimed at non-lawyers from throughout the world? Signed, /s/FetishD00D at Large Law...
The End of the Nine-Eleven Era?
Posted on November 07, 2008I don?t know if anyone else has said this, but I think the recent election has signaled the end of an era where political discourse was centered around the events of that fateful day. Anyway, please give me credit if...
CA1: crack retroactivity doesn?t go below mandatory minimums
Posted on November 07, 2008US v. Ganun, 08-1416. Seems to be the first Crack-retroactivity appeal. This guy, appearing pro se, wants to get a reduction below the statutory mandatory minimum. He loses.
CA1: Land Rover dealer not that oppressed
Posted on November 07, 2008Wagner And Wagner Auto Sales v. Land Rover North America, Inc., 08-1456. As the name suggests this is a dispute between a car dealer and a manufacturer. Land Rover terminated the agreement. Applying Automobile Dealer's Day in Court Act, 15...
CA1: developer plaintiff moves forward with ?class of one? environmental case
Posted on November 06, 2008SBT Holdings, et al v. Town of Westminster et al , 08-1512. This is a 1983 case for rich people. The First reverses the District Court and holds for the developers. SBT bought property. Storms came. Runoff started messing with...
CA1: a Checkbook is not a payment under ERISA
Posted on November 06, 2008Mogel v. UNUM Life Insurance, No. 08-1334. This is an ERISA case. It holds that ?security accounts? that were established to fund death benefits are not separate accounts and therefore UNUM?s ERISA-based fiduciary duty applies. UNUM claims that it complied...
Congratulations
Posted on November 05, 2008Congratulations to Barack Obama, Esq. and Joe Biden, Esq., who won some election or something.
CA1: the limits of Scott v. Harris
Posted on November 05, 2008Parker v. Gerrish, No. 08-1045 affirms a jury verdict in a 1983 case where a cop tased someone on video. That?s a surprise. So, there must be some important law here. Actually, the facts are very important in light of...
CA1: cops can take your drivers? license without seizing you
Posted on November 05, 2008US v. Ford, No. 07-2613 upholds a ruling denying a motion to suppress a gun. Some cops leaned out the window and asked a poor person some questions and took his drivers? license. The poor person raised his hands. He...
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My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...
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On 05-15 at 21:52PM
is===1My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
I am being accused of hitting a 7 yr old child with my car, but I honestly don't think I hit the child. The Child was never knocked down, ran around my car to go back to ball practice, and was walking around with the par
You are in a serious situation. Get a lawyer immediately. Make no statements to ...
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