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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.
Posner's trashing of Experts
Posted on February 20, 2008DotD has a post entitled ?Seventh Trashes Prominent Finance Professor? which you should read. Essentially, Posner flexes his muscles and says that a PhD economist ?cannot be trusted to continue as an expert witness in the case in which he...
Supreme Court decisions on stuff
Posted on February 20, 2008A lot of decisions from the Supreme Court today about preemption, arbitration, and retroactive effect. If you were a real lawyer (or adhered to basic standards of ethics) you would have read them by now.
CA1: someone has to go home
Posted on February 15, 2008Sumilat v. Mukasey, No. 07-1784 (unpublished). This case reads in substance, ?Substantial evidence supports the Board?s decision, and the record does not compel a contrary conclusion.? I can?t even tell what country he is from.
CA1: 6(b) motions and tenure termination hearings
Posted on February 15, 2008Jackson v. Norman, No. 07-2382 (unpublished) grants a summary disposition in a 1983 case in which the plaintiff claims that ?his termination from employment as a tenured professor at the Massachusetts Bay Community college ("MBCC") violated his due process and...
CA1: Mexican not always in the US
Posted on February 15, 2008Acevedo-Aguilar v. Gonzales, No. 07-1261 denies an immigration petition for review on a question of whether the facts show that the petitioner was in the US for ten straight years as required 8 U.S.C. § 1229b.
CA1: Tax Court stipulations are like contracts and are interpreted under Federal Common law
Posted on February 15, 2008Nault v. US, No. 07-1455 affirms the decision of District Court which essentially interpreted stipulated decisions by the Tax Court in litigation involving a partnership which this plaintiff was involved in. The plaintiff filed amended returns and essentially claimed that...
CA1: Cambodian not oppressed
Posted on February 14, 2008Teng v. Mukasey, No. 07-1224. In this immigration case, the petitioner is a Cambodia that was oppressed by Pol Pot and his ilk. Before the First is the CAT claim and the withholding claim. Everyone seems to agree that Cambodia...
CA1: domicile fight requires evidentiary hearing
Posted on February 14, 2008Padilla-Mangual v. Pavia Hospital, No. 07-1447. Every now and then there is a question of whether someone?s ?domicile? is for diversity purposes. Anyway, the District Court dismissed without holding an evidentiary hearing, seemingly relying on the fact that he filed...
CA1: An all-American FRCP 19 fight!
Posted on February 14, 2008B. Fernandez & Hnos. v. Kellogg USA, Inc., Nos. 07-1317, 07-1318. According to some people, understanding this kind of case is what makes you a real man. This case first came to the First in B. Fernández & Hnos., Inc....
CA1: DOJ employee loses ERISA claim on procedural and ERISA grounds
Posted on February 14, 2008Serreze Desrosiers v. Hartford Life, No. 06-2609. Starting at the top with a garden-variety denial-of-long-term disability benefits ERISA case. What sets this apart is the plaintiff is an attorney that worked at the US Trustees?s Office. She enrolled in the...
Price of Dildos Lowered in Texas
Posted on February 14, 2008Just in time for Valentines Day, the Fifth Circuit finds a civil liberty that doesn?t involve the police (unless you are into that stuff) and protects it. But C.f. Regalado v. State, 872 S.W.2d 7 (1994) (Brown, J., concurring) (?Here...
CA10: If your lawyer puts on a sheriff?s uniform and coerces you into consenting to a search, Qualified Immunity attaches
Posted on February 13, 2008Though malpractice liability does attach. See DoTD.
CA1: District Court?s finding on derivative citizenship affirmed
Posted on February 13, 2008Leal Santos v. Mukasey, No. 07-2110. This is a derivative citizenship case with a long history. It went from an IJ to the Third Circuit to the District Court in Massachusetts. Under 8 U.S.C. § 1401(a), ?derivative citizenship may be...
CA1: in an ERISA case, a trustee is personally liable (and a note of caution for defendants)
Posted on February 13, 2008Indianapolis Life v. Herman, No. 07-1797. This case holds that the trustee of an ERISA plan is personally liable for a default judgment (as well as liable in her trustee capacity) that were the result of cross-claimed filed by defendants,...
Indicted for an opinion letter?
Posted on February 11, 2008In case you don?t know, Ben Kuehne (an extremely prominent Florida lawyer) was indicted for, as far as I can tell, conducting due diligence on the sources of funds use to pay the legal fees of people accused of having...
ExxonMobile's Orders of Attachment
Posted on February 11, 2008A number of people have commented that the main stream media hasn?t provided details about ExxonMobile?s successful attempt to obtain an ?Order of Attachment? against PDVSA a/k/a the Venezuelan oil company that has something to do with Venezuelan politics...
XML case law
Posted on February 11, 2008Robert Ambrogi points out that today ?1.8M Pages of Case Law Released? today by Public.Resource.Org. The materials are in somewhat raw form, but are available for developers to access, but it is organized into directories that you can access as...
CA1: Indonesian Adventist fails in procedural challenge to the BIA
Posted on February 08, 2008Rotinsulu v. Mukasey, No. 07-1516. The petitioner is an Indonesian Adventist Christian. The Judge is Selya. It comes down to a withholding issue. The petitioner says that IJ didn?t make some findings of fact, and the BIA found them. Selya...
CA1: the First says that 28 U.S.C. § 2254(d) is constitutional, because it isn?t a rule of decision
Posted on February 08, 2008Evans v. Thompson, No. 07-1014. The First Circuit takes a position on AEDPA: That it is constitutional in terms of the ways it limits a District Court?s ability to interpret the constitution. I can?t say I am surprised. I am...
CA1: joinder and inconsistent statements
Posted on February 08, 2008US v. Richardson, No. 06-2506. In this case, the First holds that the defendant wasn?t entitled to separate trials under Rule 14 of the Federal Rules of Criminal Procedure for different counts. The First says something like, ?Sure, in most...
CA1: a wider definition of sexual harassment
Posted on February 07, 2008Billings v. Town of Grafton, No. 06-2145. In this case the First Circuit remands after summary judgment in a sexual harassment and retaliation case. This case catalogues a number of instances of breast-staring by someone with "alternating intermittent exotropia" (according...
CA1: supervised release revocation doesn?t get Booker or Blakely protection
Posted on February 07, 2008US v. Eirby, No. 07-1062. As usual, Selya uses big words when sending someone to a hole. This is a supervised-release revocation case based on a guilty plea in state court. The judge ?imposing an additional thirty-three months of immurement.?...
CA1: Refund contract enforceable
Posted on February 07, 2008PR Electric Power v. Action Refund, No. 07-1847. The defendants are in the business of getting refunds from the Department of Energy (based on a settlement of a large lawsuit involving overcharges for petroleum) in exchange for a commission. Puerto...
ALM's LegalTech Trade Show Review
Posted on February 07, 2008I was at Legal Tech. I was going to review, it or something. Legal Technology is very important because technology is the wave of the future. Blawgs are very important because they provide a running commentary of legal events, and...
That moral character stuff is a load of crap
Posted on February 07, 2008TaxProfBlog points to Keith A. Swisher posted The Troubling Rise of the Legal Profession's Good Moral Character, 82 St. John's L. Rev. ___ (2008), on SSRN, shows where the ?moral character? requirement came from. Turns out, it came from a...
CA1: Hatian not oppressed
Posted on February 06, 2008Domercant v. Mukasey, No. 07-1726 (unpublished) denies a petition for review of a Hatian?s petition for asylum. He didn?t seem too political. The IJ found him not to be credible.
CA1: what the BIA doesn?t have to address
Posted on February 06, 2008Vasilia v. Mukasey, No. 07-1434 (unpublished). These are Albanian petitioners. They sought a reopening late. The First Circuit says, ?We do not have jurisdiction to review the BIA?s decision that equitable tolling is unavailable where that decision was based ?on...
CA1: First holds that District Attorneys, even if their work is political, are not politically oppressed
Posted on February 05, 2008Hernandez Cabana v. Mukasey, No. 07-1800. I have to try and avoid the snark on this one. Essentially, the First holds that a former Colombian Assistant District Attorney is not entitled to withholding of removal. Under Matter of Fuentes, 19...
CA1: is there really a duty to inspect a gun barrel ?
Posted on February 05, 2008US v. Alexander, No. 06-2475 (unpublished). A guy was convicted for unlawfully possessing a sawed-off shotgun. He challenges his conviction on the basis of an unpreserved sufficiency challenge. Everything is pretty routine, except that the government?s proof that the gun...
Commentary on Parker v. Town of Lexington
Posted on February 05, 2008Mirror of Justice comments on Parker v. Town of Lexington, No. 07-1528, which we covered here. That is the case where the First tells the parents that don?t like gay people where to go. They find some international law support...
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Standards of Practice in Civil Protection Order Cases
The American Bar Association has recently published its new Standa...
WHAT'S THE POOP WITH THE APPELLATE TERM?
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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
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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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