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.

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

Speaking at Duke Law School today, Judge J. Harvie Wilkinson called his new book a "cri de coeur" that criticizes judicial activism on the right and the left.

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance attempts to promote judicial restraint, Judge Wilkinson explained.

Wilkinson has sat on the U.S. Court of Appeals for the Fourth Circuit since 1984, and before that, served as a law clerk to U.S. Supreme Court Justice Lewis Powell, editorial page editor for the Virginian-Pilot in Norfolk, and law professor.

As a law student, he put his studies on hold to run for Congress at age 25. His opponent had a billboard encouraging voters to return him, the incumbent, to Congress and return Wilkinson to law school. When he lost, Wilkinson quipped that he got a mandate from the voters: return to school.

Wilkinson's new book is dedicated to his law clerks, who, he said, are one of the best parts of his job. He values "intergenerational relationships" because each can learn from the other.

Being at Duke, Wilkinson took time to praise his three North Carolina colleagues on the Fourth Circuit: Albert Diaz, Allyson Duncan, and James Wynn.

Judge Wilkinson predicted that Diaz, who has been on the circuit just over a year, will come to be widely recognized as one of the best federal appellate judges in the country. Wilkinson also told how Diaz helped him in relation to the death of Fourth Circuit Judge Blane Michael. Michael and Wilkinson, both runners, had been friends and liked to go for runs in a particular park. When Michael died, Wilkinson was so sad that he wondered if he could ever run in that park again. But, Diaz invited Wilkinson to go running one day, which returned Wilkinson to the park. Wilkinson was sure that Diaz, a former Marine, had slowed his pace, so that Wilkinson could keep up.

The Fourth Circuit tradition of judges and attorneys shaking hands after oral argument was the topic of a humorous story shared today. Judge Wilkinson tried to convince a colleague on the Third Circuit, the late Judge Edward Becker, that his court should try handshaking, as well. Becker asked other judges in his circuit and looped back to Wilkinson with a negative response. They felt it would spread too many germs.