Appellate Law & Practice

Who wants to learn about the history of the Commerce Clause?

• Back in 1910, David Water Brown wrote a book about it, entitled The Commercial Power of Congress, Considered in the Light of Its Origin. You can read it for free, on Google print, here. For some reason, there are not too many sources of constitutional history which actually parse out the records of the constitutional convention.
• The Firefox extention BackgroundImage Saver will make it easier to print things that show up on Google Print.
• Also: 

  The complete archive of the Royal Society journals, including some of the most significant scientific papers ever published since 1665, is to be made freely available electronically for the first time today (14th September 2006) for a two month period.

More on US v. Henderson

As we stated here, US v. Henderson, No. 03-1888 is a notable case because it reverses the District Court’s finding in a gun-suppression case.  The defendant won, and the government lost.  Here is what the court did, just so others might get some idea of what to do.

S&LB: The First was retarded to approve admission of footprint evidence

Science and the Law Blog excorriates the First Circuit for its holding in United States v. Mahone (our coverage here).  David L. Faigman writes:

the court agreed with the trial judge's decision that a forensic specialist in footwear impressions was qualified because "she stated that she had made more than 11,000 footwear comparisons [while] she had worked as a 'latent impressions' specialist for more than two years....To have investigated 15,000 accidents, he would have had to visit approximately two accident scenes every working day for 30 years.  This leaves little time to write 10,000 accident reports.

Snarkiness a'head:

Confidential to Judge Posner: Give it Up

Dear Judge Posner:

While many people like you, and you enjoy a good reputation (I like the way you mocked the BIA), as you grow older, the chances of being nominated to the Supreme Court dim. Sorry. Therefore, there is little need to go out of your way to suck up to the administration (tnx GULC). You have life tenure, and you will never want for money, fame, or a comfortable life. You even get to teach hapless law students. The administration is unlikely to call you an “activist” or even to audit your sentencing decisions. Sure, you could do better working as an in-house or out-house, counsel, but then you wouldn’t be able to have a blog.

McCormack on ERISA conflicts

Stephen Rosenberg of the McCormack Firm has an interesting article on Janeiro v. Urological Surgery Professional Association (our coverage here) entitled Proving a[n ERISA administrator] Conflict of Interest in the First Circuit.

Update:  That blog explains how the ruling creates a split with the Ninth, here.

CA9: The wrongs of Romm

The blogosphere is beginning to churn about US v. Romm, in which a defendant unsuccessfully argues that after being denied entry to Canada, and sent back to the US, a search of his computer was improper.  Some objections have been raised here, but I offer a 2d:

The court holds:

Here, we hold Romm exercised dominion and control over the images in his cache by enlarging them on his screen, and saving them there for five minutes before deleting them. While the images were displayed on Romm’s screen and simultaneously stored to his laptop’s hard drive, he had the ability to copy, print, or email the images to others.

This is an incorrect statement.  Images in the cache are full-size.  Google’s cache of thumbnails are, by definition, not full size.  So, therefore, saying that he “enlarged” images in his cache doesn’t make sense.  Perhaps he was exercising domain and control, but this theory doesn’t work.

Also, I think Judge Bea confuses Internet Explorer’s “protection” of the cache with other protections.  In most browsers that I use there is absolutely no protection for the cache.  Indeed, one can access the cache via the command line (or even the "open" dialogue in a windows application) and not be hit with any warnings.

Update: A comment at C&F notes that the probable cause was obtained by the Canadians, anyway.

Computer hints follow:

¶

Legal malpractice punitives fun

Since the First isn’t up to anything, The Illinois Legal Malpracticee Blog has a nice post entitled “The Illinois Supreme Court Rejects Lost Punitive Damages In Legal Malpractice Cases.”  While the post discusses Tri-G v. Burke, Bosselman & Weaver, Cassandra Crotty raises a lot of interesting issues regarding why a bar against lost punitive damages may not be the best policy, but also why tinkering the bar for plaintiffs may be asymmetrical for losing defendants-come-winning plaintiffs. 

Economic with history?

White Collar Crime Prof Blog has a post detailing the efforts of US Attorneys to withdraw opinions which characterize the representations of AUSAs as less than truthful. Granted, the “sins” of the AUSAs are not nearly as bad as those of Nancy Grace and her ilk, and I am heartened by the willingness of one’s boss to take responsibility for positions taken by the office, but I really wonder how seriously a court would take a letter from a partner (or senior associate) saying, “Our firm agreed on our position vis-à-vis the truth, and therefore, the junior associate should not be named in the opinion.  Also, we appreciate the fact that you have said nice things about our firm, and our firm often hires your clerks.”

Update: A former AUSA/commentators suggests that a solution would be rather than eliminate the names of the US Attorney, simply add his supervisor to the decision, so that it is clear that the lawyer was only following orders.

Blog702 v. Overlawyered

Even though I don’t really feel like starting another blog feud with Overlawyered today as it is Organic Act Day in the US Virgin Islands, I will direct your attention to the extensive discussion at Blog702, in which the author analyzes Ted Frank’s argument that doctors should be able to invoke some form of business judgment rule when hit with a malpractice suit.  Post #1; Post #2.  One commentator points out that the Blog702 guy is probably the most polite guy in the blogosphere.

Since when is our judiciary overburdened?

Since the First isn’t doing anything, I should point out that two people recently claimed that our judiciary is overburdened.