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On February 24, 1969, the U.S. Supreme Court ruled that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The well-known case Tinker v. Des Moines permits school administrators to restrict students’ free speech rights when that free speech is likely to cause substantial disruption. The landmark case celebrated its 45th anniversary this week. In 1965, Mary Beth Tinker and her siblings joined other students in Des Moines by donning black armbands at school to protest the Vietnam War and mourn the fallen soldiers....

Predictably, both Indiana and Wisconsin are appealing to the U.S. Supreme Court following their blistering loss last week at the Seventh Circuit. At both oral arguments and in the written opinion, Judge Richard Posner did almost as much damage to them as Tom Brady did to my fantasy football team over the weekend. Here’s a look at what the two states are arguing in their petitions: A Tale of 2 Petitions Wisconsin’s petition for certiorari is on the fast track: They’ve waived the right to a reply brief to the petition so that the Supreme Court can consider the petition at its September 29 conference....

In an action claiming that defendant terminated plaintiff based on her race, summary judgment for defendant is affirmed where: 1) defendant had ample evidence of plaintiff’s performance problems; 2) no reasonable jury could find that it was “more likely than not” that plaintiff’s performance was a pretext for an illegal motive; and 3) plaintiff failed to create a genuine issue of material fact as to pretext on her retaliation claim....

In an interlocutory appeal of the district court’s denial of defendants’ motion to dismiss premised on the existence of an arbitration agreement, the appeal is dismissed for lack of jurisdiction where, to properly invoke appellate jurisdiction under the Federal Arbitration Act (FAA), the movant must either explicitly move to stay litigation and/or compel arbitration pursuant to the FAA, or it must be unmistakably clear from the four corners of the motion that the movant seeks relief provided for in the FAA....

In a First Amendment challenge to a state statutory scheme requiring grape growers to fund generic advertising, summary judgment for defendant is affirmed where the state agricultural commission’s promotional activities constituted government speech that was immune to challenge under the First Amendment. Read Delano Farms Co. v. Cal. Table Grape Comm’n, No. 08-16233 Appellate Information Argued and Submitted April 15, 2009 Filed November 20, 2009 Judges Opinion by Judge McKeown...

In a murder prosecution, a grant of petitioner’s habeas petition is reversed where petitioner failed to establish that the limitations period should be equitably tolled because he did not show that the district court gave him inaccurate instructions regarding the filing of the petition. Read Ford v. Hubbard, No. 06-56092 Appellate Information Argued and Submitted March 9, 2009 Filed December 30, 2009 Judges Opinion by Judge Clifton Counsel For Petitioner:...

FBI informants, wiretaps and prejudicial evidence: the 3rd Circuit Court of Appeals heard arguments on these issues last week as the defense attorneys for the “Fort Dix Five” appealed their clients’ case. The Fort Dix Five case involves a group of New Jersey men who were arrested in 2007 and convicted in 2008 based on their involvement in an alleged plot to attack the Fort Dix military base in New Jersey....

What is incest, really? Back in February, we mentioned that the Second Circuit had certified that question to the New York Court of Appeals. Huyen Nguyen became a conditional permanent resident of the United States in 2000 thanks to her marriage to Vu Truong, a U.S. citizen. Nguyen petitioned to have the conditions removed. USCIS did some investigating and found out that Troung was Nguyen’s half-uncle. It declared the marriage incestuous and void....

Facing a charge of driving under the influence of drugs or alcohol (DUI) or driving while intoxicated (DWI) can be scary. For many people, a drunk driving stop is their first interaction with the criminal justice system. Due to increased drunk driving on and around Halloween night, it is becoming more common for police departments to set up DWI checkpoints to look for drunk drivers. This is for a good reason: Drunk drivers with a blood alcohol content (BAC) of 0....

The attempted assassination of then-President Ronald Reagan, only a few months into his first term in 1981, shocked the nation. Reagan’s would-be assassin, John Hinckley Jr., was found not guilty by reason of insanity, which led to widespread criticism, dismay, and anger. Now 66 and the subject of decades of treatment, Hinckley is set to be completely free next summer, after a federal judge recently ordered his unconditional release. While the announcement is resurfacing the anger at Hinckley’s deed, it also raises important questions about the “insanity defense” and his subsequent treatment....

A recent jury verdict in a surgical malpractice case is making headlines for its size. The $3.7 million award was handed down to a plaintiff who suffered from a surgical complication after a procedure to install an abscess drain. Apparently, during the surgery, a bile duct was clamped shut, but was not noticed for days. The plaintiff was discharged after the surgery, then promptly complained of pain, fever, and the fact that the abscess drain didn’t seem to be working....

Ninth Circuit Court of Appeals Chief Judge Emeritus James Browning died on May 5 at a hospital in Marin County, Calif. He was 93. Judge Browning, who served on the Ninth Circuit for 50 years, including 12 years as the Chief Judge, was the longest-serving appellate judge in the history of the federal judiciary. Judge Browning is famous for protecting the massive Ninth Circuit, which includes nine states and two territories, from being split into two or three courts, the Los Angeles Times reports....

Decision by the administrative law judge (ALJ) denying plaintiff’s application for Supplemental Security Income benefits is vacated and remanded as the ALJ’s determination that plaintiff’s daughter’s impairment is not functionally equivalent to the listing for ADHD was not supported by substantial evidence. Read LG v. Astrue, No. 08-2491 Appellate Information Appeal from the United States District Court for the Eastern District of Wisconsin.Argued March 30, 2009Decided August 25, 2009 Judges...

In a prisoner civil rights action brought under the First Amendment, the Religious Land Use and Institutionalized Persons Act, and the Illinois Religious Freedom Restoration Act, district court judgment is affirmed in part and reversed in part where: 1) plaintiff’s religious exercise was substantially burdened by the procedural requirements for obtaining a religious diet and by defendant’s refusal to grant him a non-meat diet on Fridays and during Lent; 2) the court properly held there was no violation of the Establishment Clause as there were valid neutral reasons for defendant’s actions; 3) the court properly held that sovereign immunity bars any suit against defendant in his official capacity as prison chaplain under Section 1983 and RLUIPA; and 4) the court erred in holding determining that the IRFRA allows Illinois prison officials to be sued in their official capacities in federal court....

In a First Amendment action based on plaintiff’s ejection from city council meetings, judgment for defendants is affirmed where the ejection was not on account of any permissible expression of a point of view, and plaintiff was protesting the good faith efforts of the chairperson to enforce the council’s rules. Read Norse v. City of Santa Cruz, No. 07-15814 Appellate Information Argued and Submitted August 3, 2009 Filed November 2, 2009...

In an action against an insurer for coverage of a settlement in a wage and hour lawsuit, summary judgment for defendant is affirmed where, by operation of the plain terms of the agreement, plaintiff had no claim for coverage against defendant. Read Payless ShoeSource, Inc. v. Travelers Cos., Inc., No. 08-3246 Appellate Information Filed November 10, 2009 Judges Opinion by Judge Gorsuch Counsel For Appellant: Mark F. Rosenberg, Sullivan & Cromwell LLP, New York, NY...

Getting a judge removed from a case is no easy task. After all, under federal law, it is up to the judges themselves to determine, on their own, whether a conflict of interest could lead to their impartiality being questioned. Other than a judge’s own conscience, there’s little to require recusals in cases of potential judicial bias. But the Supreme Court took a small step towards establishing some hard and fast constitutional rules yesterday....

In a petition for review of the BIA’s order denying petitioner’s application for cancellation of removal, the petition is denied where petitioner’s violation of a domestic restraining order qualified as a violation of a “protection order” under 8 U.S.C. section 1227(a)(2)(E)(ii). Read Szalai v. Holder, No. 06-74994 Appellate Information Argued and Submitted October 24, 2008 Filed July 16, 2009 Judges Per Curiam Concurrence by Judge Wu Counsel For Petitioner: Teresa A....

Defendant’s drug and firearm possession sentence is affirmed where a pardon defendant received for a prior state offense did not constitute an expungement and the district court correctly considered defendant’s prior state convictions when calculating defendant’s criminal history category. Read US v. Bays, No. 09-30124 Appellate Information Submitted December 10, 2009 Filed December 17, 2009 Judges Opinion by Judge Tallman Counsel For Appellant: Dennis Benjamin, Nevin, Benjamin, McKay & Bartlett LLP, Boise, ID...

In a petition for attorney’s fees pursuant to the Civil Asset Forfeiture Reform Act (CAFRA) after petitioner prevailed in an asset forfeiture proceeding pursuant to 21 U.S.C. section 853(n), denial of the petition is affirmed where the arguments for and against permitting a prevailing section 853(n) petitioner to receive attorneys’ fees from the government were too closely balanced to allow the court of appeals to conclude that Congress’s waiver of sovereign immunity clearly and unequivocally applied in this situation....