Archive | November 2013

The Fourth Circuit May Have Quietly Set Up Supreme Court Cert Review on Judicial Recusals

By Michael Wein

An easily overlooked set of Opinions and Orders in the Fourth Circuit Court of Appeals, those in United States v. Jeffrey Sterling, (at least when considered together), appears to have gone mostly unnoticed in the blogosphere. It involves an unlikely combination of Certworthy issues for the Supreme Court, not just on the scope of a potential privilege and/or 1st Amendment rights that exists for reporters to obtain and keep secret information received from confidential sources, but to include the ethics issue for Judicial Recusal, at least with respect to the intervenor, New York Times reporter James Risen, and a host of Amici groups, including the Times, Washington Post, Tribune Company, and CNN. (Actually, most major media companies in the U.S.). Read More…

Advertisements

November 2013 Certiorari Grants

The Court of Appeals of Maryland granted certiorari in 12 cases on Friday, November 22, 2013. Consistent its new policy of deciding all cases in the same term in which they were argued, the Court designated 11 of the 12 cases for the Court’s September 2014 Term. The one case assigned to the present September 2013 Term involves issues similar to a certified question that the Court has designated for argument in May 2013. Read More…

Which Circuit Judges Could Retire Today?

By Steve Klepper (Twitter: @MDAppeal)

Wow. So Harry Reid went nuclear. Just 51 votes are now required for cloture on votes to confirm U.S. District Judges and U.S. Circuit Judges.

Two questions now come to the forefront:

(1) Will Senator Leahy, Chair of the Senate Judiciary Committee, adhere to the “blue slip” protocol, under which both home-state senators must approve a nominee?

(2) Will there be a flood of judges assuming senior status? Read More…

How Twitter Can Save Law Reviews

By Steve Klepper (Twitter: @MDAppeal)

Recently, a New York Times column by Adam Liptak reignited a running controversy over the utility of law reviews. If you’re interested in that controversy, I recommend responses by Will Baude and Orin Kerr at The Volokh Conspiracy, plus a rebuttal by Christopher Zorn at Empirical Legal Studies. And, more to the point of this post, Derek Muller’s post, Why Aren’t More Journals Like the Case Western Reserve Law Review?, examines what certain law reviews are doing right. Building on Professor Muller’s observations, I’d like to offer my own observations on how an online presence, particularly through Twitter, can increase a law review’s readership and encourage a dialogue useful to the bench, bar, and academia. Read More…

Comments Are Encouraged (and Easier to Make)

Now that we have a good-sized regular readership base, we’d like to encourage our readers to continue the conversation with the “Leave a Reply” feature at the bottom of each post. When we launched, the comment feature was at the default setting, which required a login through a Twitter or WordPress account.  We’ve unlocked that feature, so that anyone can comment without a login. Comments will, however, remain subject to approval before they appear on the site. If your comment doesn’t appear reasonably soon, please shoot an email to the Editor-in-Chief, as your comment may have been accidentally picked up by a spam filter.  (Tip: If your comment touts anatomical enhancements through non-FDA-approved supplements, it’ll likely get caught in the spam filter.) So let’s get the conversation going!

Who’s the appellant, what’s the appellee, and I don’t know if we have jurisdiction.

By Brad McCullough

The Court of Special Appeals recently issued an opinion that calls to mind the famous Abbott and Costello comedy routine, “Who’s on First.” Read More…

Sketches of a Fourth Circuit Argument

By Steve Klepper (Twitter: @MDAppeal)

Supreme Court sketch artist Art Lien recently posted some amazing sketches from the October 30, 2013 Fourth Circuit argument in United States v. Dehlinger, No. 12-7121.  As luck would have it, two of the panelists (Judges Diana Motz in the center and Andre Davis on the right) are Maryland-based.  The third is Judge Roger Gregory of Virginia.  With Mr. Lien’s permission, I’ve re-posted two of the sketches below. The first provides a wonderfully detailed view of the Fourth Circuit’s Red Courtroom (Room 412).  The second depicts the grand tradition of the Fourth Circuit shaking hands with counsel after each argument.

Art Lien - 4th Cir argument Art Lien - 4th Cir handshake

I’m particularly fond of the handshake tradition.  In an appeal that I took over in 2010 as a result of the illness and untimely death of one of my firm’s partners, the dearly missed Max Lauten, Judge Davis, who sat on the panel, made a special point of conveying his condolences.  Judge Davis did write the opinion against my client, but I do genuinely appreciate the thoughtfulness of his published opinion.

According to the Fourth Circuit’s argument calendar, the issue in Dehlinger was whether the “district court correctly denied relief on ineffective assistance of counsel claim that alleged counsel’s representation was tainted by conflict of interest.” Briefs are available here. Audio of the argument is available here.

Clarence Thomas, Facebook Justice

By Steve Klepper (Twitter: @MDAppeal)

On the occasion of Wall Street discovering that Facebook is no longer cool,[1] and on the occasion of the Supreme Court denying certiorari in the Facebook privacy class-action, I decided finally to offer my thesis that Justice Clarence Thomas is a justice for the Facebook era.

Virtually nothing is certain regarding the legislative prayer case, Town of Greece v. Galloway, being argued today before the Supreme Court. But I see one safe bet: Justice Thomas will write a separate opinion expressing his view that the Establishment Clause binds only the Federal Government, not the states. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 678-79 (2002) (Thomas, J., concurring). Read More…

U. Md. Law to Host 4th Cir. Arguments, Wed. Nov. 6th

By Michael Wein

Closer to home than Richmond, the Fourth Circuit is scheduled to hear oral arguments in three cases this week at the University of Maryland School of Law.   As noted on the school’s website, the briefs have been made available online, and judge-permitting (and obviously not on any pending cases), there may be some Q & A with the gallery.

[Editor-in-Chief’s note: The Fourth Circuit does not disclose the panel composition until the morning of oral argument.]

En Banc Fourth Circuit Proves Vexing to Vexatious Prisoner Litigants

By Jonathan Biran

It’s not every day that the Fourth Circuit publishes an opinion denying a motion for reconsideration of a denial to proceed in forma pauperis on appeal – let alone that the Fourth Circuit does so en banc. That is what Fourth Circuit did on October 21, 2013, in Blakely v. Wards. Read More…