Federal Judiciary

Restarting this Blog

Posted on June 27, 2008
Due to overwhelming demand, we’d like to start this blog back up again. If you think you are the right person to be the Decision of the Day blogger, please email: alex (@) enotes.com. Thanks!

Loblaw Has Left the Building

Posted on April 30, 2008
Decision of the Day began in October 2005, when I started stockpiling posts to see whether I could keep up the frenetic pace of blogging. I decided that I could and, for the most part, I did. The website went live in November 2005, and I never looked back...

Another Reason To Say No To Drugs

Posted on April 29, 2008
Students for a Sensible Drug Policy v. Spellings, 07-1159 (8th Cir., April 29, 2008) Under a 1998 law, students who are convicted of possessing or selling drugs are ineligible for federal financial assistance. One strike buys a year or two of ineligibility and, depending on the offense, multiple strikes can result in a permanent ban...

Posner Gets A Big One Right

Posted on April 28, 2008
Crawford v. Marion County Election Board, 07-21 (Supreme Court, April 28, 2008) In January 2007, I reported on this Seventh Circuit decision, in which a divided panel upheld a controversial Indiana law that requires voters to show specific forms of identification at the polls...

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Finally, Some Questions about the Wisdom of RLUIPA

Posted on April 24, 2008
Koger v. Bryan, 05-1904 (7th Cir., April 24, 2008) Remember the Religious Freedom Restoration Act? That law, designed to protect religious practices from government interference, went on life support in 1997 when the Supreme Court declared that the statute was unconstitutional as applied to state and local governments...

Seventh Upholds Student?s Right to Wear ?Be Happy, Not Gay? T-Shirt

Posted on April 23, 2008
Nuxoll v. Indian Prairie School District, 08-1050 (7th Cir., April 23, 2008) In a late-breaking school speech case, the Seventh Circuit has concluded that a high school sophomore is entitled to a preliminary injunction that allows him to wear a banned t-shirt opposing homosexuality...

Seventh Chastises Ninth for Encouraging Mickey Mouse Law Suits

Posted on April 22, 2008
Springman v. AIG Marketing, Inc., 08-1019 (7th Cir., April 15, 2008) In a decision issued last week and amended today, the Seventh has deepened a circuit split under the Class Action Fairness Act. CAFA gave defendants a much-fought-for right to remove certain large class actions from state to federal court, but CAFA only applies to lawsuits [...

Second Lets Whitman Off the Hook for Post-9/11 Liability

Posted on April 22, 2008
Benzman v. Whitman, 06-1166 (2nd Cir., April 22, 2008) In big Bivens news, a panel of the Second Circuit has rejected efforts to hold a government official personally liable for false reassurances about lower Manhattan?s air quality in the days after the September 11 attacks...

Crossing the Border? Leave Your Laptop at Home

Posted on April 21, 2008
U.S. v. Arnold, 06-50581 (9th Cir., April 21, 2008) On the way back from a three-week vacation in the Philippines, defendant Michael Arnold was selected for secondary screening by Customs officials at Los Angeles airport. One officer asked Arnold to turn on his laptop to determine whether it was functioning...

Fifth Circuit Divides Over How To Handle Sentencing Error

Posted on April 17, 2008
U.S. v. Bonilla, 06-40894 (5th Cir., April 16, 2008) With most eyes focused on a trio of major sentencing decisions issued yesterday by the Supreme Court, it was easy to miss this divided Fifth Circuit sentencing decision. But it is definitely worth a read...

Another Critique of AEDPA ? From an Unlikely Source

Posted on April 16, 2008
Evans v. Thompson, 07-1014 (1st Cir., April 16, 2008) With the Anti-Terrorism and Effective Death Penalty Act of 1996, Congress stripped the federal courts of their traditional habeas powers over state court convictions. Traditionally, when a habeas petitioner raised a constitutional complaint about his conviction, federal courts applied circuit law to determine whether a constitutional violation [...

Watch Out for the ?Bow Police?

Posted on April 15, 2008
Borden v. School District of the Town of East Brunswick, 06-3890 (3rd Cir., April 15, 2008) This Third Circuit decision addresses a high school football coach?s challenge to the school district?s restrictions on his ability to pray with his players. Plaintiff Marcus Borden has been the head football coach at East Brunswick High School since 1983...

To Protect and Serve . . . and Set Fires?

Posted on April 14, 2008
U.S. v. Mock, 06-15861 (11th Cir., April 14, 2008) U.S. v. Eff, 07-40338 (5th Cir., April 14, 2008) In a bit of a coincidence, today?s federal appellate decisions include two appeals from convicted arsonists. Federal arson trials are rare enough, but the coincidence is even more striking: both of the defendants are ex-law enforcement...

Defendant Tries To Capitalize on Sentencing Error, Literally

Posted on April 14, 2008
U.S. v. Ibrahim, 07-50153 (9th Cir., April 14, 2008) Defendant Tamer Ibrahim was a suspect in an ecstasy distribution ring. And a lucrative one at that. When police raided his apartment, they found $221,000 in a safe, $240,000 in a bag outside the apartment, and almost $30,000 scattered around the apartment...

D.C. Circuit Revisits Tort Case Involving Kidnapped Foreign Employee

Posted on April 11, 2008
Khan v. Parsons Global Service, 07-7059 (April 11, 2008) A memorable tort case has made its way back to the D.C. Circuit. Defendant Parsons Global Services relocated plaintiff Azhar Ali Khan to its office in the Philippines. From my November 2005 coverage: While traveling to Manila to find a place to live, Khan was kidnapped and held [...

Free Speech in Schools: Much Ado About Nothing?

Posted on April 09, 2008
Morrison v. Board of Education of Boyd County, 06-5380 (6th Cir., April 9, 2008) Last October, I wrote about this school speech decision from the Sixth Circuit: Here?s a difficult First Amendment case that pits students? rights to express their religious beliefs about homosexuality against the right of homosexual students not to be harassed at school...

Kelo Strikes Again

Posted on April 07, 2008
Goldstein v. Pataki, 07-2537 (2nd Cir., April 7, 2008) Kelo v. City of New London is probably the most widely maligned Supreme Court decision of the past decade. In Kelo, a closely divided Court held that the Fifth Amendment?s takings clause does not bar local governments from using eminent domain powers to hand private property over to developers, so long as [...

Real-Life Grinch Gets Hard Time for Ruining Kids? Christmas

Posted on April 07, 2008
U.S. v. Ellisor, 05-14459 (11th Cir., April 7, 2008) This Eleventh Circuit appeal involves a criminal defendant who concocted a fake Christmas field trip for elementary school students. From the opinion: Excited about the opportunity for their students to attend what the invitation materials described as a “once in a lifetime opportunity” to meet 28 foreign ambassadors, [...

No En Banc Rehearing for Muzzled ADA Watchdog

Posted on April 07, 2008
Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir., April 7, 2008) Jarek Molski is a recurring character on this blog. He?s a wheelchair-bound activist who travels across California finding businesses that are failing to accommodate the disabled as required by federal and state law...

Ninth Revives Indictment in Joint Civil-Criminal Investigation

Posted on April 07, 2008
U.S. v. Stringer, 06-30100 (9th Cir., April 4, 2008) This Ninth Circuit decision addresses some tricky issues that arise when one branch of the government is conducting a civil investigation into wrongdoing that is also the subject of a criminal investigation...

Second Circuit Tosses Out $800 Billion Class Action by Light Cigarette Smokers

Posted on April 03, 2008
McLaughlin v. American Tobacco Company, 06-4666 (2nd Cir., April 3, 2008) In a major decision, a panel of the Second Circuit has tossed out an $800 billion RICO class action against big tobacco. The plaintiffs are current or former smokers who allege that for almost fifty years the tobacco companies deceived them into paying more for [...

En Banc Ninth Revisits Online Immunity Case

Posted on April 03, 2008
Fair Housing Council v. Roommates.com, 04-56916 (9th Cir., April 3, 2008) A year ago, a panel of the Ninth Circuit made waves when it issued a fractured decision that limited online content providers? immunity under § 230 of the Communications Decency Act...

A Mushroom Is Not Such a Fun Guy After All

Posted on April 02, 2008
Rick?s Mushroom Service v. U.S., 2007-5137 (Fed. Cir., April 2, 2008) File this under the surprising things you learn when you read Federal Circuit decisions: Historically, the organic by-product waste of mushroom farming, known as “spent mushroom substrate” (”SMS”), was dumped in nearby woods or streams, resulting in severe nitrogen pollution...

Remarkable Ninth Circuit Decision on Inmate?s Right to New DNA Testing

Posted on April 02, 2008
Osborne v. District Attorney?s Office for the Third Judicial District, 06-35875 (9th Cir., April 2, 2008) In a big § 1983 decision, a panel of the Ninth Circuit has concluded that a convicted rapist has a due process right to run new DNA tests on the forensic evidence used to convict him...

Fifth Circuit Reverses Conviction Due To Prosecutorial Misconduct

Posted on April 01, 2008
U.S. v. Gracia, 07-40245 (5th Cir., March 31, 2008) If this decision had come a day later, it might have been mistaken for an elaborate April Fool?s hoax. A unanimous panel of the Fifth Circuit has reversed a criminal conviction on the ground that the prosecutor used his closing argument to improperly bolster the credibility of [...

Sixth Circuit Won?t Rehear ?Modern Day Scarlet Letter? Decision

Posted on March 31, 2008
Doe v. Bredesen, 06-6393 (6th Cir., March 31, 2008) Last November, a divided panel of the Sixth Circuit upheld a Tennessee law that requires certain sex offenders to wear a prominent global positioning device so that law enforcement can monitor their whereabouts at all times...

Please Update Your DotD Bookmarks and Links!

Posted on March 28, 2008
The good folks at eNotes are making some changes to their blog empire.  The URL for Decision of the Day has changed to http://www.enotes.com/blogs/decision-blog/.  The old URL will still work for a week or two, but eventually you will need to use this new link...

D.C. Circuit Addresses Scientific Questions About Bipolar Disorder

Posted on March 28, 2008
Fitts v. Unum Life Insurance, 07-7097 (D.C. Cir., March 28, 2008) Like insurance coverage disputes, employee benefits cases are usually too dull for words. But this employee benefits case highlights an interesting scientific question: is bipolar disorder a physical or mental illness? Jane Fitts was a lawyer for Fannie Mae until her bipolar disorder made it impossible [...

Procedural SNAFU Sets Murderer Free, For Now

Posted on March 27, 2008
Harvest v. Castro, 05-16879 (9th Cir., March 27, 2008) When courts decide that a constitutional error requires a new trial for a convicted criminal, they typically issue a conditional writ of habeas corpus. The conditional writ gives prosecutors a limited time frame in which to retry the defendant; otherwise, the defendant goes free...

Ninth Upholds Hollywood-Inspired Ten Commandments Monument

Posted on March 26, 2008
Card v. City of Everett, 05-35996 (9th Cir., March 26, 2008) In a big church-state decision, the Ninth Circuit has given the constitutional green light to a Ten Commandments monument that stands at the entrance of the Old City Hall in Everett, Washington...

Coming Soon: The Doors Own Salad Dressing?

Posted on March 25, 2008
Manzarek v. St. Paul Fire & Marine Insurance Co., 06-55936 (9th Cir., March 25, 2008) I usually stay far, far away from insurance coverage disputes. But here?s an interesting insurance case: does St. Paul have a duty to defend the keyboardist from The Doors for using the band?s trademarks on products sold at his concerts? Manzarek and his [...

Tow Trucks in the News Again

Posted on March 24, 2008
Automobile Club of New York, Inc. v. Dykstra, 06-1872 (2nd Cir., March 24, 2008) This month?s decisions have highlighted an unlikely new chapter for the constitutional law books: the law of towing. A few weeks ago, I wrote about this Ninth Circuit decision in which the Court found that a policeman?s decision to tow a car [...

The Case of the Ecstatic Sewage System

Posted on March 21, 2008
U.S. v. Fiasche, 07-1132 (7th Cir., March 21, 2008) You don?t often find jokes in criminal appeals. But leave it to Judge Evans of the Seventh Circuit to find a way to be cute in this decision affirming the district court?s denial of a motion to suppress...

Ninth Rejects RICO Claims Against Companies Who Hire Illegal Aliens

Posted on March 21, 2008
Canyon County v. Syngenta Seeds, Inc., 06-35112 (9th Cir., March 21, 2008) Here?s an interesting approach to the problem of illegal immigration: an Idaho County is trying to use RICO laws to go after employers who hire illegal laborers. Plaintiff Canyon County claims that four local companies have knowingly employed and harbored illegal aliens, and their [...

Kozinski Proves Once and For All That Blawgs Are Cool

Posted on March 20, 2008
New Hampshire Insurance Co. v. C?Est Moi, Inc., 06-55031 (9th Cir., March 20, 2008) Here?s the opening line from one of today?s Ninth Circuit decisions, authored by Chief Judge Kozinski: We consider the doctrine that?s on everyone?s lips: uberrimae fidei...

Two Significant En Banc Rehearings

Posted on March 18, 2008
Moore v. Quarterman, 05-70038 (5th Cir., March 14, 2008) Fisher v. City of San Jose, 04-16095 (9th Cir., March 14, 2008) The circuits don?t seem to be doing anything interesting today. That?s probably just as well, since all eyes are fixed on Washington for oral argument in the Supreme Court?s groundbreaking Second Amendment case...

Best Case Name Ever

Posted on March 17, 2008
Asset forfeitures are known as “in rem” actions, meaning that the government is proceeding against a thing, not the owner of the thing. So the “defendant” in an asset forfeiture action is the thing being forfeited. This legal conceit always results in interesting case names, such as “U...

Seventh Circuit Refuses to Hold Craigslist Liable for Housing Discrimination

Posted on March 14, 2008
Chicago Lawyers’ Committee for Civil Rights v. Craigslist, 07-1101 (7th Cir., March 14, 2008) In a decision that will interest online content providers, the Seventh Circuit has rejected efforts to hold Craigslist liable for discriminatory housing ads...

En Banc Ninth Refuses to Reconsider Vote Swapping Case

Posted on March 13, 2008
Porter v. Bowen, 06-55517 (9th Cir., March 13, 2008) In a fascinating decision issued last August, a panel of the Ninth Circuit declared that voters have a First Amendment right to enter into vote-swapping agreements. From my earlier coverage: The case arises from various vote swapping websites which sprang up during the 2000 election...

The Bible Shall Set You Free

Posted on March 12, 2008
U.S. v. Lara-Ramirez, 06-2108 (1st Cir., Mar. 11, 2008) I?ve written a few times before about death row inmates who have tried to avoid execution based on the fact that the jury used a Bible during deliberations. That argument did not fly in the Fourth or Ninth Circuits, but a First Circuit panel has just set free [...

En Banc Eighth Limits Georgia v. Randolph

Posted on March 11, 2008
U.S. v. Hudspeth, 05-3316 (8th Cir., March 11, 2008) The en banc Eighth Circuit has just reversed a panel holding in an interesting Fourth Amendment consent case. From my earlier coverage: This Eighth Circuit appeal addresses whether a wife?s consent allowed police to search her husband?s computer after the defendant, then in custody, had refused consent...

A Due Process Right Not To Be Towed

Posted on March 11, 2008
Clement v. City of Glendale, 05-56692 (9th Cir., March 11, 2008) Anyone who has ever had a run-in with the law over vehicle registration - and I?m sure there are plenty of you - will appreciate this decision from the Ninth Circuit. Plaintiff Mary Clement let her car registration expire and instead filed a certificate of [...

Circuit Split: Ambiguous Waivers of Miranda Rights

Posted on March 10, 2008
U.S. v. Rodriguez, 07-10217 (9th Cir., Mar. 10, 2008) I?ve written a couple of times about a crazy California state court decision which held that “I plead the Fifth” is not a clear invocation of a suspect?s Fifth Amendment right to silence...

Eighth Tosses Most Deep Pockets from Blogging Sex Scandal Suit

Posted on March 06, 2008
Steinbuch v. Cutler, 07-1509 (8th Cir., March 6, 2008) Once upon a time, Jessica Cutler was one of the biggest names in the blogging world. An intern to a Republican Senator by day, Cutler spent her nights engaged in all manner of sexual escapades - sometimes for money - with some of the dullest men in [...

It?s Gettin? Hard Out Here for an Expert Witness . . .

Posted on March 05, 2008
Pace v. Swerdlow, 06-4157 (10th Cir., Mar. 4, 2008) . . . When he tryin? to get his money for the rent. When the Cadillac and gas money?s spent, You?ll have a whole lot of clients jumpin? ship. Last week I wrote about an expert witness who got put out of business by the Seventh Circuit for being too [...

Suicidal Maniacs and the Fourth Amendment

Posted on March 04, 2008
Mora v. City of Gaithersburg, 06-2158 (4th Cir., Mar. 4, 2008) Today, a panel of the Fourth Circuit issued an interesting decision rejecting the constitutional claims of plaintiff Anthony Mora, who alleges that police violated his rights by searching his home and seizing his weapons following Mora?s call to a suicide hotline...

Ninth Divides Over the Validity of the Smell Test

Posted on March 04, 2008
U.S. v. Jenkins, 06-50049 (9th Cir., Mar. 4, 2008) Last July, a divided panel of the Ninth Circuit affirmed a district court decision to dismiss additional criminal charges filed against a defendant who was already on trial on the ground that the new charges reeked of prosecutorial vindictiveness...

Litigious Softball Parents Get Beaned by the Seventh

Posted on February 29, 2008
Springer v. Durflinger, 06-2168 (7th Cir., Feb. 29, 2008) I often criticize the Seventh Circuit for being harsh with its sanction power. But here?s one case where sanctions may well be deserved: two sets of parents who made a federal civil rights case out of their disagreement with a high school softball coach...

A Remarkable Death Row Habeas Decision from the Sixth

Posted on February 27, 2008
Bies v. Bagley, 06-3471 (6th Cir., Feb. 26, 2008) In a surprising decision, a panel of the Sixth Circuit has held that Double Jeopardy bars a state from relitigating the issue of a death row inmate?s mental retardation. Petitioner Michael Bies is sitting on death row for the kidnapping, attempted rape, and murder of a ten [...

Do Federal Circuit Judges Really Watch South Park?

Posted on February 26, 2008
Baird v. Department of the Army, 2007-3046 (Fed. Cir., Feb. 26, 2008) As Mr. Mackey from South Park would say, “drugs are bad, mmmkay?” It?s not every day that you see a South Park reference in a judicial opinion. And a one-liner in a Federal Circuit decision is even less common...

Circuit Split: Protecting Police under the Public Safety Exception to Miranda

Posted on February 25, 2008
U.S. v. Liddell, 07-1337 (8th Cir., Feb. 25, 2008) Under Miranda, suspects who are questioned while in custody must be advised of their constitutional rights, or their subsequent statements are not admissible. In New York v. Quarles, the Supreme Court carved out a limited exception for threats to public safety...

Three Second Circuit Victories for Agent Orange Manufacturers

Posted on February 22, 2008
Isaacson v. Dow Chemical Company, 05-1820 (2nd Cir., Feb. 22, 2008) Twinam v. Dow Chemical Company, 05-1760 (2nd Cir., Feb. 22, 2008) Vietnamese Association for Victims of Agent Orange v. Dow Chemical Company, 05-1953 (2nd Cir., Feb. 22, 2008) Today, the same panel of the Second Circuit issued decisions in three different appeals involving litigation over Agent Orange, [...

At Least He Was Recycling

Posted on February 20, 2008
U.S. v. Drennon, 06-3399 (3rd Cir., Feb. 20, 2008) From a Third Circuit decision issued today: Drennon robbed Bensalem Bank on October 17, 2005, passing the teller a handwritten note made out on the back of a pay stub bearing his name. He was arrested shortly thereafter...

Fourth Amendment Rights for a Storage Locker Squatter

Posted on February 20, 2008
U.S. v. Murphy, 06-30582 (9th Cir., Feb. 20, 2008) Does a meth manufacturer who is squatting in a storage facility have the same Fourth Amendment rights as a person who is living in a house? That?s the issue that faces a panel of the Ninth Circuit in this criminal decision...

The Seventh is on the Warpath Today . . .

Posted on February 20, 2008
Ridge Chrysler v. Daimler Chrysler, 06-4140 (7th Cir., Feb. 20, 2008) Fresh on the heels of this Posner decision comes an equally vitriolic Easterbrook decision. The plaintiffs are Chrysler dealers who sued after Chrysler tried to exercise a contract provision that would require them to pay for their inventory up front, which would have effectively ended [...

Seventh Trashes Prominent Finance Professor

Posted on February 20, 2008
Emerald Investments Limited Partnership v. Allmerica Life Insurance, 07-1597 (7th Cir., Feb. 20, 2008) The Seventh Circuit is well-known for trashing the reputation of lawyers who have the temerity to make the same minor technical errors that most other attorneys get away with on a daily basis...

This One?s For the Birds

Posted on February 19, 2008
American Bird Conservancy v. FCC, 06-1165 (D.C. Cir., Feb 19, 2008) In a significant environmental ruling, a divided panel of the D.C. Circuit has held that the Federal Communications Commission needs to pay more attention to the impact of communications towers on bird populations in the Gulf Coast...

Interesting Wiretap Decision from the Tenth

Posted on February 19, 2008
U.S. v. Verdin-Garcia, 06-3354 (10th Cir., Feb. 19, 2008) Fans of the HBO series The Wire will appreciate this Tenth Circuit criminal appeal, which involves a massive drug conspiracy that the government pieced together using 3000 wiretapped calls over a three-month period...

En Banc Ninth Addresses Whether ?I Plead the Fifth? Is Ambiguous

Posted on February 15, 2008
Anderson v. Terhune, 04-17237 (9th Cir., Feb. 15, 2008) A little over a year ago, I wrote about a startling habeas decision from the Ninth Circuit involving a defendant?s assertion of his Fifth Amendment right to silence. Under Miranda and its progeny, when a suspect asserts his Fifth Amendment right to silence during custodial interrogation, all [...

Would You Like Your Terror in a Cone or a Cup?

Posted on February 14, 2008
U.S. v. Elfgeeh, 06-0638 (2nd Cir., Feb. 14, 2008) Today?s Second Circuit decisions bring us the story of Aref Elfgeeh, a Yemeni immigrant who used his Park Slope ice cream parlor as a front to illegally funnel more than $20 million to the Middle East...

A Fourth Amendment Case With an Ethical Twist

Posted on February 13, 2008
Eidson v. Owens, 07-7007 (10th Cir., Feb. 13, 2008) This Tenth Circuit decision involves a deputy sheriff who coerced the plaintiffs into allowing deputies to search their property. Defendant Floyd Wesley Owens is a reserve sheriff in rural Oklahoma. News travels quickly in a small town, and Owens heard that plaintiff Kim Eidson had been involved [...

Fifth Circuit Strikes Down Texas Sex Toy Ban

Posted on February 12, 2008
Reliable Consultants, Inc. v. Earle, 06-51067 (5th Cir., Feb. 12, 2008) In a major Fourteenth Amendment ruling, a divided panel of the Fifth Circuit has struck down portions of a Texas statute that makes it a crime to sell “obscene devices.” You know what I?m talking about...

Fifth Widens Circuit Split Over Psychotherapist-Patient Privilege

Posted on February 11, 2008
U.S. v. Auster, 07-30084 (5th Cir., Feb. 11, 2008) Today, the Fifth Circuit broke new ground in a growing circuit split over whether the psychotherapist-patient privilege applies to violent threats. Defendant John Auster is a retired police officer who suffers from paranoia, anger, and depression; the fact that his worker?s compensation benefits were about to be [...

Second Revives ADA Claim Against Rude Fast Food Employees

Posted on February 08, 2008
Camarillo v. Carrols Corporation, 06-4909 (2nd Cir., Feb. 8, 2008) The Second Circuit has revived a disability discrimination claim against several fast food chains in the Catskills area that do not have large print menus. Plaintiff Alice Camarillo is legally blind and can only read large print at a close distance...

Shotgun Pleading Gets Caught in the Crosshairs

Posted on February 06, 2008
Davis v. Coca Cola Bottling Co., 05-12988 (11th Cir., Feb. 6, 2008) If the framers of the Federal Rules of Civil Procedure could read the record in this case ? beginning with the plaintiffs? complaint and [defendant]?s answer and continuing to the district court?s final order granting [the defendant] summary judgment ? they would roll over in their [...

Interesting Immigration Decision from the Seventh

Posted on February 05, 2008
Garcia-Meza v. Mukasey, 07-2215 (7th Cir., Feb. 5, 2008) Immigrants who have been lawful residents of this country for years can still be deported in a heartbeat if they commit crimes of moral turpitude. Is crumpling up a parking ticket and tossing it at the feet of the meter maid enough to get someone deported? That?s [...

Fifth Exposes Secret Class Action Fee Award

Posted on February 04, 2008
In re High Sulfur Content Gasoline Products Liability Litigation, 07-30384 (5th Cir., Feb. 4, 2008) This Fifth Circuit appeal provides an interesting window into the strange and secretive world of class action attorneys. The appeal involves a New Orleans district court?s distribution of attorney fees in a class action suit over contaminated gasoline that had damaged [...

Tax-Cheating Survivor Stays in Prison

Posted on February 02, 2008
U.S. v. Hatch, 06-1902 (1st Cir., Feb. 1, 2008) Just as Richard Hatch stayed until the end of the game on Survivor: Borneo, he’ll also stay until the end of the game at FCI: Morgantown.  That’s the word from the First Circuit, which rejected Hatch’s tax evasion appeal yesterday...

First Rejects Claims from Parents Angry Over Homosexuality in Elementary Schools

Posted on February 01, 2008
Parker v. Hurley, 07-1528 (1st Cir., Jan. 31, 2008) Massachusetts was a national leader on the issue of gay marriage, and now some elementary schools are apparently following suit. This does not sit well with all of the parents of school-aged children, including the plaintiffs in this suit against Lexington school officials...

School Strip Search Case Headed for En Banc Rehearing

Posted on January 31, 2008
Redding v. Safford Unified School District #1, 05-15759 (9th Cir., Jan. 31, 2008) Remember this appeal from last September? Thirteen-year-old Savana Redding, an honor roll student with no prior disciplinary problems, was required to strip, exposing her breasts and pubic area, in a fruitless search for ? at worst ? prescription strength ibuprofen...

Notorious Nazi Loses Deportation Appeal

Posted on January 30, 2008
Demjanjuk v. Mukasey, 07-3022 (6th Cir., Jan. 30, 2008) The man who many have alleged to be Ivan the Terrible may have beaten a death sentence, but he?s not going to beat deportation. That?s the word from the Sixth Circuit, which rejected an immigration appeal from John Demjanjuk, who allegedly ran the gas chamber at the [...

Tenth Stretches Personal Jurisdiction in eBay Infringement Case

Posted on January 29, 2008
Dudnikov v. Chalk & Vermillion Fine Arts, Inc., 06-1458 (10th Cir., Jan. 28, 2008) Late yesterday, the Tenth Circuit issued a very interesting decision showing how far the internet has stretched the concept of personal jurisdiction. The plaintiffs are Colorado-based eBay sellers who decided to make some money with an awkward variation on the elegantly dressed women [...

Coming Soon To Arizona Roads: Choose Life License Plates

Posted on January 28, 2008
Arizona Life Coalition v. Stanton, 05-16971 (9th Cir., Jan. 28, 2008) Pro-lifers won a big victory today, courtesy of the Ninth Circuit. A coalition of pro-life and pregnancy support groups asked the Arizona License Plate Commission to start issuing speciality plates with the message, “Choose Life...

Harvey Has A Heart!

Posted on January 25, 2008
Stanford v. Continental Casualty Co., 06-2006 (4th Cir., Jan. 23, 2008) I usually try not to bore my readers with ERISA cases, but I must make an exception for this appeal, in which Judge Wilkinson parts ways from his conservative brethren to argue that a recovering drug addict is entitled to disability benefits...

En Banc Ninth Scales Back Protections for Social Workers

Posted on January 24, 2008
Beltran v. Santa Clara County, 05-16976 (9th Cir., Jan. 24, 2008) In a brief per curiam decision, the en banc Ninth Circuit has renounced a 2003 decision granting social workers absolute immunity for their actions in child dependency proceedings. The limits of that precedent were sorely tested in this § 1983 case, which involves allegations that [...

A Not-So-Instant Replay in Baseball Doping Scandal

Posted on January 24, 2008
U.S. v. Comprehensive Drug Testing, Inc., 05-10067 (9th Cir., Jan. 24, 2008) The government?s investigation into the Balco doping scandal just took a bad bounce. This appeal involves evidence that the government seized when it raided two labs that run drug tests for Major League Baseball...

Third Divides Over Discrimination Against Out-of-State Sex Offenders

Posted on January 23, 2008
Doe v. Pennsylvania Board of Probation, 05-4200 (3rd Cir., Jan. 23, 2008) In a significant ruling on a hot-button issue, a divided panel of the Third Circuit has struck down part of Pennsylvania?s sex offender notification statute because it discriminates against out of state sex offenders...

Is There a Difference Between ?Reasonable Belief? and ?Probable Cause??

Posted on January 22, 2008
Price v. Sery, 06-35159 (9th Cir., Jan. 21, 2008) This Ninth Circuit decision focuses on a fascinating semantic issue in Fourth Amendment law: is there a legally significant difference between reasonable belief and probable cause? The question arises in the context of a Portland policy that authorizes deadly force if an officer “reasonably believes” that the [...

Divided Tenth Rejects Suit to Treat Paralympians the Same as Olympians

Posted on January 19, 2008
Hollonbeck v. United States Olympic Committee, 07-1053 (10th Cir., Jan. 16, 2008) Seven years ago, the Supreme Court issued a highly controversial decision requiring the PGA to allow disabled golfers to use a cart to get from one shot to another. Now, disabled athletes have another battle to fight: they want the United States Olympic Committee to [...

No Trial for Drunk Driver Snared During DWI Contest

Posted on January 17, 2008
Sherbrooke v. City of Pelican Rapids, 06-4072 (8th Cir., Jan. 17, 2008) Here is an interesting Fourth Amendment decision from the Eighth Circuit. Plaintiff David Sherbrooke had a few drinks too many at his high school reunion in Pelican Rapids, Minnesota...

Fifth Grader Loses Suit Over Religious Candy Cane

Posted on January 16, 2008
Curry v. Hensiner, 06-2439 (6th Cir., Jan. 16, 2008) Here?s a Sixth Circuit appeal involving religion in public schools. This time the plaintiff is a fifth grader who wanted to “sell” candy cane ornaments with a religious message attached as part of a classroom exercise...

John Ashcroft To Stand Trial for Death Row Media Policy?

Posted on January 15, 2008
Hammer v. Ashcroft, 06-1750 (7th Cir., Jan. 15, 2008) In a major prisoner appeal, the Seventh Circuit has revived a federal death row inmate?s lawsuit over the Bureau of Prison?s ban on in-person media interviews. The high profile defendants include former Attorney General John Ashcroft and former BOP director Kathleen Hawk-Sawyer, both of whom are sued [...

Divided Sixth Circuit Revives Claims Against Overzealous Prosecutor

Posted on January 14, 2008
Harris v. Bornhorst, 06-3729 (6th Cir., Jan. 14, 2008) Today?s Sixth Circuit decisions include this fascinating but tragic § 1983 case brought by Anthony Harris, who was the prime suspect in the brutal murder of a five year old neighbor. In fact, Harris had confessed to the killing and was convicted...

It?s War on Terror Day in the D.C. Circuit

Posted on January 11, 2008
Rasul v. Rumsfeld, 06-5209 (D.C. Cir., Jan. 11, 2008) National Institute of Military Justice, 06-5242 (D.C. Cir., Jan. 11, 2008) U.S. v. Sheehan, 07-3002 (D.C. Cir., Jan. 11, 2008) Things might not be looking so hot in Iraq, but today, the Bush administration won two significant victories in the War on Terror, courtesy of the D...

First Vacates Jury Award for Victim of Overzealous Airline Security

Posted on January 10, 2008
Cerqueira v. American Airlines, 07-1824 (1st Cir., Jan. 10, 2008) In a decision that delves into the security decisions that airline crews face every day, the First Circuit has vacated a jury verdict for a plaintiff who alleged that he was tossed off of an American Airlines flight because passengers and crew thought he was middle [...

No Due Process Claim for Momma?s Boy

Posted on January 09, 2008
Miyler v. Village of East Galesburg, 06-3625 (7th Cir., Jan. 9, 2008) This § 1983 lawsuit involves a pretty cozy arrangement: plaintiff Cody Miyler served as the Chief of Police of the tiny village of East Galesburg, Illinois, and he reported to the Village President, who also happened to be his mother...

Fourth Circuit Vacates Conviction on Fourth Amendment Grounds

Posted on January 08, 2008
U.S. v. Reaves, 06-5073 (4th Cir., Jan. 8, 2008) In a surprising Fourth Amendment decision, the Fourth Circuit has vacated a defendant?s gun conviction because police did not have reasonable suspicion to stop the defendant. Here are the facts: An anonymous 911 caller reported that she had seen the driver of a plum-colored Mercedes engage in [...

Shake That Thang! Says Posner

Posted on January 07, 2008
Richman v. Sheahan, 07-1487 (7th Cir., Jan. 7, 2008) Here?s another gem of a Seventh Circuit decision, this time from the inimitable Richard Posner. For the second time, the Court has reversed a district court decision granting summary judgment to police officers who injured an elderly woman and her obese son as they literally dragged them [...

Sixth Circuit Enacts the ?Some Children Left Behind? Act

Posted on January 07, 2008
School District of the City of Pontiac v. Secretary of Education, 05-2708 (6th Cir., Jan. 7, 2008) In an fascinating Spending Clause decision, a divided panel of the Sixth Circuit has struck down the unfunded mandates in the No Child Left Behind Act. Under the NCLB, local school districts receive additional federal funding in exchange for agreeing to [...

The Sixth?s Resolution for 2008: More En Banc Habeas Decisions?

Posted on January 04, 2008
Bell v. Bell, 04-5523 (6th Cir., Jan. 4, 2008) The Sixth Circuit is known for its deep divisions in habeas cases, and the divide is on stark display today in this en banc decision affirming the denial of habeas relief. Petitioner Stephen Bell (presumably no relation to the respondent, Warden Ricky Bell) claims that the prosecutor [...

A Classic Easterbrook Opinion

Posted on January 03, 2008
Federal Trade Commission v. QT Inc., 07-1662 (7th Cir., Jan 3, 2008) If you only read only opinion by Judge Easterbrook this year, make it this one. It may be a little early to start handing out superlatives for 2008, but this Seventh Circuit decision is a real gem...