Victoria Nourse: D.C. Circuit Nominee?

A few weeks ago, Senator Harry Reid said that he expected President Obama to nominate three more people to the U.S. Court of Appeals for the D.C. Circuit soon.

That hasn't happened yet, but it got me thinking about the people he might nominate.

Could Victoria Nourse be in that group?

In July 2010, Obama nominated Nourse to a Seventh Circuit seat in Wisconsin. She was then a law professor at the University of Wisconsin, as well as former counsel to the Senate Judiciary Committee and its chair, then-Senator Joe Biden.

After one of the home state senators blocked her nomination by not returning his blue slip, she withdrew in January 2012.

Subsequently, Nourse left Wisconsin Law, where she had been a professor since 1993, and became a professor at Georgetown Law in Washington, D.C. (She had also been a visiting professor at Georgetown previously.)

See where I am going with this?

Info
*Nourse's current bio is here.
*A 2011 letter from a bipartisan group of scholars supporting her Seventh Circuit nomination is here.

Circuit Split Watch: Gun Rights Outside the Home

This article first appeared in the January 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

The U.S. Supreme Court’s landmark Heller decision declared an individual right to possess a firearm at home, but left open the question of gun rights in public. The high court could be asked to weigh in soon on this open question, which has split federal appellate courts and again been part of the national conversation since the Newtown shootings.

In a December opinion, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, writing for himself and Judge Joel Flaum, honed in on the words “keep and bear” in the Second Amendment, drawing meaning from each one.

“The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home,” Posner stated. “A right to bear arms thus implies a right to carry a loaded gun outside the home.” This reading, Posner concluded, is consistent with Heller. The majority struck down an Illinois ban on carrying guns in public.

Dissenting, Judge Ann Claire Williams was not convinced that Heller implied a “right to have ready-to-use firearms” outside the home.

Williams looked to “a long history of regulating arms in public,” including state laws adopted during the founding era. Predating those laws, the 1328 Statute of Northampton provided that no one may “go nor ride armed by night nor by day, in Fairs, markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.”

Both Posner and Williams cited recent decisions from the 2nd and 4th Circuits, which upheld public-carry restrictions (a New York law and a National Park Service regulation, respectively).

In November, a unanimous 2nd Circuit panel found “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”

A unanimous 4th Circuit held in 2011 that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” As to extending Heller, two of the three judges said it is “prudent to await direction from the [Supreme] Court.”

Posner questioned both opinions and distinguished the Illinois ban as “the most restrictive gun law of any of the 50 states.” Along these lines and in an unusual move, Posner gave the Illinois legislature 180 days to revise the ban. The new law can “impose reasonable limitations, consistent with the public safety and the Second Amendment,” he explained.

If Illinois takes this option, it could lessen the practical impact of the circuit split. The revised restrictions could be similar to those upheld; in fact, the Supreme Court declined to review the 4th Circuit public-carry decision. A petition for certiorari is pending in the 2nd Circuit case.

For now, Illinois continues to fight the 7th Circuit ruling.

On January 8, Illinois Attorney General Lisa Madigan filed a petition for rehearing en banc. In a press release that same day, Madigan said: “In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts.”

If the full 7th Circuit decides to rehear the case, any Supreme Court review would be delayed. However, a quick denial by the 7th Circuit, followed by a petition for certiorari is just as likely.

Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

This article first appeared in the October 31, 2012, issue of the National Law Journal’s Supreme Court Insider.

Paul Cassell, a former federal judge, represents child pornography victims in a series of federal appellate cases. In October alone, Cassell notched a win and a loss in two circuit courts and argued in another. The case he won created a circuit split about restitution for victims, which the U.S. Supreme Court will almost certainly be asked to review.

A former clerk to Chief Justice Warren Burger at the Supreme Court and then-Judge Antonin Scalia at the U.S. Court of Appeals for the D.C. Circuit, Cassell served as a federal district judge in Utah from 2002-2007. He is currently a professor at the University of Utah’s S.J. Quinney College of Law. With the assistance of law students in the Utah Appellate Clinic, Cassell has been involved in litigation throughout the country on behalf of victims.

Under 18 U.S.C. § 2259, child pornography victims are entitled to restitution from defendants for losses in several listed categories, among them: medical expenses, therapy costs, lost income, attorneys’ fees, and “any other losses suffered by the victim as a proximate result of the offense.”

The last phrase is the source of the circuit split.

On October 1, in a win for Cassell, the en banc 5th Circuit concluded that the “proximate result” requirement applies only to the last category, “any other losses.” The 5th Circuit acknowledged that its reading of the statute splits with “[a]ll our sister circuits that have addressed this question.”

Eight federal appellate courts have held that proximate cause applies to all losses. Put another way, there must be some direct link between the defendant’s offenses and the victim’s losses.

The split has important consequences.

Under the majority approach, it is more difficult for victims to collect. Defendants who possess or transport images may not cause a direct loss in the same way that producers of images do. The defendants in the 5th Circuit were guilty of possession, making them harder to reach for restitution.

On October 24, just weeks after the 5th Circuit decision, Cassell lost a case in the 9th Circuit, one of the courts that follows the majority rule. The 9th Circuit affirmed its precedent and expressly declined to adopt the 5th Circuit decision.

In an earlier appeal in the same matter, the 9th Circuit said that “the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants . . . are held liable for the harms they cause through their participation in the market for child pornography.”

In its October 24 opinion, the 9th Circuit also raised the possibility of Supreme Court intervention.

Both the 5th and 9th Circuit decisions could be appealed to the Supreme Court soon. The clear split on an important, recurring issue of federal law makes them cases to watch. A former federal judge’s participation also gives the split greater visibility.

Work continues in other cases, as well.

According to the Utah College of Law website, quoting one of Cassell’s students, the 5th Circuit decision “came down in our favor about seven minutes before Professor Cassell got up to argue [on restitution before the 7th Circuit]. That decision changed the face of the argument and the feeling in the courtroom.”

The case was argued on October 1 in a special 7th Circuit sitting at the University of Notre Dame Law School and is pending.

Circuit Split Watch: When Sanctioned Attorneys Can't Pay

This article first appeared in the August 29, 2012, issue of the National Law Journal’s Supreme Court Insider.

Federal appellate courts are split over whether money sanctions issued against an attorney can be reduced when he cannot afford to pay. The question has also split conservative and liberal thought leaders, in unexpected ways. The Supreme Court, which recently decided another costs case, could be asked to resolve the split.

Under 28 U.S.C. § 1927, an attorney “who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the 7th Circuit, a respected conservative jurist, has at least two suggestions for errant attorneys who cannot afford to pay: Take it up with the bankruptcy court and possibly find a new career.

In 2009, Easterbrook, writing for a unanimous three-judge panel in Shales v. General Chauffeurs Local Union No. 330, explained that a § 1927 violation “is a form of intentional tort….Damages depend on the victim’s loss, not the wrongdoer’s resources.” If the attorney cannot pay the sanction, he could seek relief in bankruptcy. Further, if the attorney “is poor because people are not willing to pay much, or at all, for his services, then he should turn from the practice of law to some other endeavor where he will do less harm.”

Last month, 9th Circuit Judge Stephen Reinhardt, who has been called a “liberal lion,” rejected the 7th Circuit’s conclusion in Haynes v. City & County of San Francisco. The statute says that the court “may” require an attorney to pay costs, not “must” or “shall”—a clear signal to Reinhardt and the other two panel members that the lower court has discretion to order and adjust costs. He noted that the 2nd Circuit also adopted this “plain meaning” in Oliveri v. Thompson, a 1986 case.

Ordering “sanctions in an amount many times greater than the attorney will ever be able to pay” can be “a futile gesture that does little” to make victims whole, Reinhardt reasoned.

Ironically, the Reinhardt and Easterbrook approaches could be seen as an ideological swap, with the liberal Reinhardt playing the role of textualist and the conservative Easterbrook looking for context outside the words.

While costs will never grab the headlines in the way that affirmative action, same-sex marriage, and other cases in the Supreme Court’s current inbox will, they have gotten the Court’s attention as a day-to-day part of litigation that affects many people.

In May, the Supreme Court decided a costs case involving a different statute. Taniguchi v. Kan Pacific Saipan, Ltd. clarified that costs awarded for interpreters include only oral translation expenses. Like the pending attorney-costs split, Taniguchi also involved a split between the 7th and 9th Circuits—resolved in the 7th Circuit’s favor. (This column previously highlighted Taniguchi.)

Before the attorney-costs issue can reach the Supreme Court, though, there may be a rehearing en banc.

The sanctioned attorney has indicated that he intends to seek rehearing. Although he won on the possible reduction of costs (to be determined on remand by the district court), the 9th Circuit opinion also said that he “engaged in a wide variety of incompetent and unprofessional actions.” The circuit issued a separate unpublished memorandum opinion to that effect.

The 9th Circuit has set an October deadline for his petition.

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

This article first appeared in the June 4, 2012, issue of the National Law Journal’s Supreme Court Insider.

Could the Computer Fraud and Abuse Act be used to “turn ordinary citizens into criminals”? Or is this fear based on “far-fetched” and “wacky hypotheticals”?

Yes and yes, say the majority and dissent in United States v. Nosal, a recent 9-2 decision of the U.S. Court of Appeals for the 9th Circuit, sitting en banc. Chief Judge Alex Kozinski, writing for the majority, acknowledged that its reading of the CFAA splits from other federal appellate court decisions. A petition for certiorari could be filed this summer.

Employees of an executive search firm allegedly accessed the firm’s computer database to obtain information, which they gave to David Nosal, a former employee. Nosal intended to use the information to compete with the firm.

After this came to light, Nosal was indicted on twenty counts, including trade secret theft, mail fraud, conspiracy, and CFAA violations.

At issue on appeal is the phrase “exceeds authorized access” to a computer under the CFAA.

To Chief Judge Kozinski, access and misuse of information are two separate questions. The employees who allegedly fed Nosal information were authorized to access the firm database. They had permission. The problem was subsequent misuse of firm information. The solution is to prosecute the misuse or look to Congress to amend the CFAA, not to imagine words that are not there.

Otherwise, Kozinski said, scores of unsuspecting people who are authorized to use their work computers for business only, under computer-use policies, but check sports news, send personal emails, or engage in other non-work uses, even occasionally, could be guilty of a federal crime—exceeding authorized access.

Kozinski was also concerned that violating particular sites’ terms of use could be criminalized. For instance, eHarmony’s terms of use prohibit giving “inaccurate, misleading or false information.” Saying that you are “‘tall, dark, and handsome,’ when you’re actually short and homely, will earn you a handsome orange jumpsuit,” Kozinski surmised.

Kozinski noted that the majority’s reading of the CFAA veers from 5th, 7th, and 11th Circuit decisions and invited those circuits to reconsider.

Judge Barry Silverman, in dissent, was unimpressed.

This case is not about “playing sudoku, checking email, fibbing on dating sites, or any of the other activities” the majority discussed, Judge Silverman wrote. It is about “stealing an employer’s valuable information to set up a competing business with the purloined data.” The majority’s “far-fetched” and “wacky hypotheticals” miss the point.

Nosal’s co-conspirators were authorized to be in the firm system for firm business, not to steal its information. Silverman gave this example: “A bank teller is entitled to access a bank’s money for legitimate banking purposes, but not to take the bank’s money for himself.”

Other circuits got it right, Silverman explained. Those courts found that authorized access had been exceeded under the CFAA when a Citigroup employee used information from a company database to commit fraud, a Social Security Administration employee tracked old flames and potential new ones via the SSA system, and an employee of a government contractor used her work access to view then-candidate Barack Obama’s student loan records.

The Obama student loan case, from the 8th Circuit, was not discussed in the majority opinion.

At the request of the United States, the losing party in Nosal, the 9th Circuit stayed its mandate pending filing of a petition for certiorari. The en banc decision was issued in April, so a petition could be filed with the Supreme Court as late as July.

Circuit Split Watch: Variations on the Padilla Theme

This article first appeared in the January 10, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding—at the intersection of criminal and immigration laws—that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court. All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari.

In 2003, Roselva Chaidez, a lawful permanent resident of the United States since 1977, pled guilty to fraud related to a staged accident insurance scheme and, in 2004, was sentenced to probation. Five years later, after Chaidez tried to apply for citizenship, the federal government initiated removal proceedings against her. Because the admitted fraud caused the victims to lose more than $10,000, it qualified as an aggravated felony, and Chaidez was eligible for deportation.

Chaidez took the matter to federal district court, filing a coram nobis motion, which is a collateral attack similar to habeas, except the defendant is not in custody. Chaidez argued that her attorney did not tell her that a guilty plea could get her deported. Had she known, she would not have pled guilty. Chaidez alleged ineffective assistance of counsel and asked that her conviction be overturned.

Looking to Padilla, which the Supreme Court decided while Chaidez’s motion was pending, the district court vacated her conviction.

The 7th Circuit reversed, over Judge Ann Claire Williams’ dissent.

Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack. The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated. In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea. Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively. Following 7th Circuit Rule 40(e), the panel distributed the majority and dissent to all ten active 7th Circuit judges. The majority voted not to rehear the case en banc. However, as reported in the panel opinion, four judges voted for rehearing.

The 7th Circuit also denied a later rehearing en banc petition, this time without a vote requested, presumably because the court had previously taken and announced its vote.

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

A petition for certiorari has already been filed in the 7th Circuit case, and petitions from the 3rd and 10th Circuit cases could soon follow.

Why Was an Amicus Appointed in Dorsey and Hill? (Miguel Estrada)

Today, the U.S. Supreme Court appointed Miguel Estrada to defend the judgments below in Dorsey v. United States (11-5683) and Hill v. United States (11-5721). Why was this necessary?

The short answer is that the federal government took a position before the U.S. Court of Appeals for the Seventh Circuit in Dorsey and Hill, won those cases, and then changed its position.

The longer answer is in a "Memorandum for All Federal Prosecutors," from Attorney General Eric Holder, dated July 15, 2011:

Last August . . . the President signed the Fair Sentencing Act of 2010 into law. This new law . . . reduced the unjustified 100-to-1 quantity ratio between crack and powder cocaine sentencing . . . . [Note: Now 18-to-1]

Immediately following the enactment of the Fair Sentencing Act, the Department advised federal prosecutors that the new penalties would apply prospectively only to offense conduct occurring on or after the enactment date, August 3, 2010. Many courts have now considered the temporal scope of the Act and have reached varying conclusions. . . . [Explained further in this post]

In light of the differing court decisions—and the serious impact on the criminal justice system of continuing to impose unfair penalties—I have reviewed our position regarding the applicability of the [Act to persons] sentenced on or after the date of enactment. . . . I have concluded that the law requires the application of the [Act] . . . to all sentencings that occur on or after August 3, 2010, regardless of when the offense conduct took place.

This memo came out after both Dorsey and Hill were decided, in favor of the government's original position. With that change, the judgments below were orphaned and needed an amicus to defend them.

Because the Seventh Circuit was the court below, and Justice Elena Kagan is the circuit justice, she would have made the amicus assignment. Justice Kagan chose her old friend (they sat next to each other as 1Ls), Supreme Court veteran Miguel Estrada.

Circuit Split Watch: Help Wanted for Crack Sentencing Appeals?

This article first appeared in the October 17, 2011, issue of the National Law Journal’s Supreme Court Insider.

Congress passed the Fair Sentencing Act of 2010 to reduce the vast and heavily criticized disparity between crack cocaine and powder cocaine sentences.

Implementing the FSA has not been easy, though, as federal appeals courts have split over when it applies. Two of these cases could reach the Supreme Court soon as petitions for certiorari, and a third is already there.

In July, the 7th Circuit decided United States v. Holcomb, a consolidation of appeals involving four defendants. Each committed crack offenses before the FSA became law, but was sentenced after, receiving lower FSA sentences. For one defendant, the difference was 33 months (within the FSA range) versus 120 months (pre-FSA mandatory minimum).

A three-judge 7th Circuit panel, citing prior circuit precedent, found that the FSA only applies to offenses committed after it became law and that the sentencing date is irrelevant. As a result, the defendants would get the higher sentences. This had been the federal government’s position.

About a week later, though, Attorney General Eric Holder issued a “Memorandum for All Federal Prosecutors” that rejected this approach. Originally, prosecutors had been told that the FSA only applied to post-FSA offenses. However, as Holder explained, confusion in the courts and “the serious impact on the criminal justice system of continuing to impose unfair penalties” had caused him to review and change the policy. Going forward, the FSA would apply to post-FSA sentences, regardless of the offense date.

After the government notified the 7th Circuit of the policy change, the court denied rehearing en banc sua sponte. The vote was a tie, 5-5, leaving the earlier decision intact.

Chief Judge Frank Easterbrook, writing for the four other judges opposed to rehearing en banc, focused on 1 U.S.C. § 109. Under that section, repealing a statute does not “extinguish any penalty” of the old statute, except where expressly stated in the “repealing Act.” Put another way, the FSA is not retroactive unless it says so. And it doesn’t, Easterbrook concluded. He also saw no implied retroactivity.

Judge Ann Claire Williams, joined by the four other judges who voted for rehearing, called this result “wrong” and “nonsensical.” Judge Richard Posner, who joined Williams, but also wrote a separate individual dissent, went further, deeming it “gratuitously silly” and “perverse.”

The FSA, Williams noted, gives the Sentencing Commission “emergency authority” to promulgate guidelines consistent with the FSA “as soon as practicable.” Also, the FSA states that it is “restor[ing] fairness to Federal cocaine sentencing.” Williams questioned why Congress would rush to replace admittedly unfair sentences, only to continue imposing them.

As both sides pointed out, there is a 3-2 split among the federal appellate courts on when to apply the FSA. The 1st, 3rd and 11th Circuits are in sync with Williams’ opinion, while the 8th Circuit squares with the 7th Circuit holding defended by Easterbrook.

The 7th and 8th Circuit cases are likely to be appealed to the Supreme Court soon. Like the 7th Circuit, the 8th Circuit recently denied rehearing en banc. Also, an earlier 7th Circuit case on FSA retroactivity, Fisher v. United States, is already pending before the Court as a petition. It was distributed for the September 26 conference, but the Court took no action, perhaps waiting in anticipation of further petitions. (See also Dorsey v. United States, consolidated with Fisher below.)

Because of the circuit split, and the practical implications for many defendants, the Supreme Court may decide to grant certiorari. If so, the scenario will be different than most, since the winner in the 7th and 8th Circuits, the government, now disagrees with those decisions. In such cases, the Court can appoint an attorney to defend the judgments below. Often, as Legal Times has reported, former Supreme Court clerks get this nod.

The government has not appealed its losses in the 1st, 3rd and 11th Circuits, but the latter is still pending. On October 4, the 11th Circuit ordered rehearing en banc sua sponte.

Update to Circuit Split Watch (Cert Grant)

A Japanese baseball player, the Northern Mariana Islands, and Richard Posner in one case summary.

Today, the U.S. Supreme Court granted certiorari in Taniguchi v. Kan Pacific Saipan, Ltd. (10-1472), spotlighted earlier this year in my Circuit Split Watch column. The link to the Ninth Circuit decision has changed since original publication (current link is here). The case deals with costs awarded for "interpreters" and whether written and spoken translation work is covered.

SCOTUSblog has the briefs, linked here.

Circuit Split Watch: GPS Surveillance

On Friday, a federal appellate court kept a circuit split alive.

As Appellate Daily previously reported, the D.C. Circuit held in August that GPS surveillance of a vehicle required a warrant, departing from the Seventh, Eighth, and Ninth Circuits. Friday's D.C. Circuit ruling denied en banc rehearing.

Dissenting from that denial, Chief Judge David Sentelle, joined by three other judges, wrote that "the panel’s decision is inconsistent not only with every other federal circuit which has considered the case, but more importantly, with controlling Supreme Court precedent set forth in United States v. Knotts, 460 U.S. 276 (1983)." Knotts upheld use of a radio transmitter placed in a vehicle without a warrant.

Earlier this year, on the other coast, the Ninth Circuit came to a different conclusion, upholding warrantless GPS surveillance and then denying en banc rehearing. Dissenting from that denial, Chief Judge Alex Kozinski, joined by four other judges, called the upheld surveillance "creepy and un-American" and a far cry from the bygone technology at issue in Knotts. 

The Ninth Circuit case is now at the Supreme Court, with a recently filed petition for certiorari. A D.C. Circuit petition is sure to follow. Given the growing Fourth Amendment implications associated with technology, coupled with the circuit split, not to mention close votes and spirited dissents within those circuits, the Supreme Court will no doubt give these petitions close attention.

It should be noted that the Supreme Court, in 2007, denied certiorari in the Seventh Circuit case (written by Judge Richard Posner). PACER records do not show a cert petition in the Eighth Circuit case.

Appellate Daily, Judges Series: Chief Judge David Sentelle and Chief Judge Alex Kozinski.

Tased: Three Circuits

"Spillcam" and "vuvuzela" may be the top words of 2010, but the word on many police departments' minds lately could very well be "Taser."

Last week alone, the Fourth and Seventh Circuits ruled against police, allowing suits stemming from deadly Taser incidents to go forward.

Also, in December, the Ninth Circuit sitting en banc will rehear two Taser cases that police originally won (not deadly incidents). In Seattle, a simple traffic stop for speeding escalated to tasing when the driver, a pregnant woman, refused to sign paperwork and leave her car. She thought that signing would admit guilt. In Maui, a teenager called police to report a physical altercation between her mother and stepfather. When the police arrived and attempted to arrest the man, the woman stood in front of him and did not move. Police tased her. The original Ninth Circuit panels found that the officers were entitled to qualified immunity, but the en banc decision remains to be seen.

Fourth Circuit-Article and order
Seventh Circuit-Article and opinion
Ninth Circuit-Rehearing notice
Ninth Circuit-Original opinion, Seattle
Ninth Circuit-Original opinion, Maui

Judges Series: Chief Judge Frank Easterbrook

*Seventh Circuit Bar Association website (for more video clips of Chief Judge Easterbrook, and other judges, click here)

Chief Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit is one of the best known and most respected federal appellate judges. He has written and been written about extensively, e.g., here, here, here, here, and here-first page only, and given many speeches and presentations, e.g., here and here-at 29-34, 37-42 (17-43).

Chief Judge Easterbrook's career path as an appellate attorney, and now appellate judge, is enviable. Following graduation from the University of Chicago Law School, Easterbrook clerked for First Circuit Judge Levin Campbell and then joined the U.S. Solicitor General's Office, briefing and arguing cases before the Supreme Court for five years. After returning to Chicago Law, this time as a professor, Easterbrook was confirmed to the Seventh Circuit, serving there since 1985 and as its chief judge since 2006.

Also of note:

Born 1948 in Buffalo, NY and grew up there.

Defines himself as a textualist who has no interest in legislative intent (see video embedded above).

Identifies his legal interests as "antitrust law, criminal law and procedure, and other subjects involving implicit or explicit markets."

Recommends reading prose, as well as Strunk & White's The Elements of Style and Bryan Garner's The Elements of Legal Style, to improve legal writing. Also, has a particular interest in a brief's physical format (e.g., Times New Roman font was designed for newspaper articles, not briefs; do not use).

Worked under Solicitors General Robert Bork and Wade McCree.

Nominated in his mid-thirties to the Seventh Circuit by President Reagan. Would have liked "15 years or so" more as a professor (with consulting and practice), but did not want to turn down the judgeship opportunity.

Enjoys Alaska and opera, outside of the law.

Holds annual "reunions/Star-Wars-movie events," for his clerks.

To reach this post later, or to read about other judges, go to Resources, Judges Series, on Appellate Daily's right sidebar, linked here.

Seventh Circuit: Video Interviews of Judges

A few months ago, Appellate Daily reported on a series of video interviews posted on the Seventh Circuit Bar Association website.  At the time, the videos were only available to bar members, but now are open to the public, linked here.

The interviews, which feature the Seventh Circuit judges listed below (bios linked), as well as federal district court judges, magistrates, and others, are organized into short snippets, making it possible to glean valuable information whether you have five minutes or five hours.

William J. Bauer

Frank H. Easterbrook (Chief Judge)

David F. Hamilton

John Daniel Tinder

Ann Claire Williams

Diane P. Wood

New Resource for Seventh Circuit Attorneys (and a Teaser for Others)

The August 2010 issue of the ABA Journal contains an article outlining a new resource for members of the Seventh Circuit Bar Association.

The bar is making available "in-depth and frank video discussions with more than 45 distinguished jurists and trial lawyers across Illinois, Indiana and Wisconsin, seek[ing] to capture and share the bar’s institutional knowledge."  These videos are only available to members of the Seventh Circuit bar.

However, there is a short sample video available to all, containing comments from Seventh Circuit judges William Bauer and Diane Wood (from the bar home page, scroll down to the colored E-Mentoring box with a gray screen; click anywhere on that screen to begin).  The sample video is an effective teaser—definitely piques interest in the series as a whole.

A Circle of Life Kinda Day

In 1787, Benjamin Franklin wondered if the sun painted on the President's chair at the Philadelphia convention was rising or setting.  On Monday, the answer is both.

Beginning at 10:00 am ET, the Supreme Court will issue its last decisions of the Term and Justice Stevens will leave the federal bench after almost forty years, five with the Seventh Circuit and nearly thirty-five with the Supreme Court.  Then, at 12:30 pm, the Senate Judiciary Committee hearings for his replacement, nominee Elena Kagan, will start.

Seventh Circuit on iTunes

As an update to a previous post about appellate oral arguments available online, linked on Appellate Daily's sidebar, Seventh Circuit arguments are also available at no charge on iTunes (search "Seventh Circuit" from the iTunes Store).

Seventh Circuit Dismisses Blagojevich Motion

The Seventh Circuit has dismissed Rod Blagojevich's motion to delay the start of his trial. Blagojevich is charged, in part, with honest services fraud, a provision under scrutiny in a trio of cases currently pending before the Supreme Court. Blagojevich's counsel stated that if the Supreme Court throws out the law while the trial is in progress, they will move for a mistrial. Rejecting the motion, the Seventh Circuit explained that "it might give us pause" if "deprivation of honest services" were the only charge. "However, the defendants [Blagojevich and his brother] face additional charges." An appeal to the Supreme Court is expected.