Top Five Appellate Daily Posts of 2012

Below are the five most popular Appellate Daily posts of 2012, with a few notes and updates. Thanks to everyone for reading and following the news feed. Hope your 2013 is happy!

1-How Paul Clement Wishes He Could Prepare for Argument

• My interview with the former Solicitor General tops the list this year. It is also the most popular post in the blog's history, by far.

2-Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

• The United States decided not to appeal the Ninth Circuit decision featured in this post, perhaps "scared off by [Chief] Judge Kozinski's opinion" for the en banc majority, according to Professor Orin Kerr quoted in Wired. "It would have been the first document that the [Supreme Court] justices read, and it's a pretty powerful brief against the government's position," said Kerr.
• The computer-use issue is still alive, though. A pending petition for certiorari from the Fourth Circuit on the issue (12-518) gives the Supreme Court the chance to weigh in.

3-Circuit Split Watch: A New Abortion Battleground

• This split is ready and waiting for a vehicle to get it to the Supreme Court. The Oklahoma state court case, mentioned at the end of the post, is the one to watch right now. On December 4, the state supreme court struck down Oklahoma's pre-abortion ultrasound requirement. That day, the state attorney general said in a press release that his office is considering an appeal.
• The Texas federal case is over; it was not appealed to the Supreme Court. The North Carolina federal case is still pending below. See Abortion Ultrasound Cases (Updates and Correction).

4-Judge Wilkinson on Cri de Coeur, Law Clerks, and a Germophobic Third Circuit

• The Green Bag recently recognized Judge Wilkinson's book, discussed in this post, in its 2012 Exemplary Legal Writing honors.

5-Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

• Judge Cassell has asked the Supreme Court (12-651) to review the Ninth Circuit decision highlighted in this post. Other petitions could follow in the coming months.

Monthly Column on Circuit Splits

I am going to be doing a monthly column on circuit splits for the Supreme Court Insider, a fantastic publication anchored by veteran Court experts Tony Mauro and Marcia Coyle. Look for the first installment in February.

Highlights and Trends

As a follow-up to Tuesday's Short Circuits, below are recent highlights and trends from the federal appellate courts, including a circuit split:

GPS Surveillance
In the past two weeks, both the Ninth and DC Circuits ruled on warrantless GPS tracking and whether it violates the Fourth Amendment.  The Ninth Circuit said no (in denying rehearing en banc), while the DC Circuit said yes.

According to the New York Times, "Supreme Court review of the [DC Circuit] decision seems likely" because it departs from the Ninth Circuit, as well as the Seventh and Eighth.  Though breaking from the pack, the DC Circuit decision was unanimous.  The Ninth Circuit en banc denial, in contrast, included a spirited dissent from Chief Judge Alex Kozinski, joined by four other judges, calling warrantless tracking "creepy and un-American" and making class references ("When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep.  But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy . . . .").