July 2008


Carbonite freezing.

Nerfherder

Thx to /film

Longhorn Legends

Barking Carnival has a fascinating comparison of Coaches Royal, Akers, and Brown’s first decades at the Texas helm. Below, I’ve summarized the comparison between DKR and Mack because it is the most competitive and surprising contrast.

Overall Record:

DKR: 82-23-3; 75.2% winning percentage
Mack: 103-25-0; 80.4% winning percentage

Conference Record:

DKR (SWC): 50-15-2; 75.8% winning percentage
Mack (Big 12): 65-15-0; 81.2% winning percentage

Titles:

DKR: 2 outright SWC titles, 2 co-championships, and 1 National Championship
Mack: 3 Big 12 South Division championships, 1 Big 12 Championship, and 1 National Championship

Rankings:

DKR: Top 5 five times (1959, 1961-64); Top 20 two times (1957, 1960)
Mack: Top 5 three times (2001, 2004, 2005); Top 10 two times (2002, 2007); Top 25 five times (1998, 1999, 2000, 2003, 2006)

Rivalries:

DKR: vs. OU (8-2); vs. A&M (10-0)
Mack: vs. OU (4-6); vs. A&M (7-3)

While Mack may be rightly knocked for his lackluster performance against Texas’s most hated rivals (excepting of course the bonfire tragedy year agaisnt A&M), no one can seriously challenge Mack’s amazing overall performance, even as compared to one of the college game’s greatest coaches.

One other thing Mack has accomplished that is unlikely to ever be eclipsed by anyone is having the distinction of winning the “not only the best BCS bowl game ever played, but the best college football game ever played … period.” Texas is as lucky to have Mack as it was to have DKR.

The telling comparison will come during the next ten years, as DKR won two more national titles during that span. Let’s see how many more Mack can bring home to Austin.

Thx to Barking Carnival and ESPN’s Big 12 Blog

Keep Austin Weird

Okay, the Federal Trade Commission (FTC) thinks no antitrust concerns are rasised by allowing the planet to be served by only one satellite radio company, but allowing the merger of two niche, patchouli-oil-scented grocery store chains is just a groovy bridge too far.

A federal district court ruled last August that Austin’s own bohemian bazaar turned corporate giant, Whole Foods, could acquire rival hippie food purveyor, Wild Oats, without hurting competition.

Yesterday, the D.C. Circuit ruled it had had enough of all the free grocery love, reversed the district court, and held that the core customers of each store were “worthy of antitrust protection,” despite their appearance (oh ok, I added that last part).

Because the merger has already gone through in the interim, the likely outcome of the remand–if the court sids with the FTC as expected–is that stores in areas that raise antitrust concerns will likely be divested.

Thx to the Austin Business Journal and the WSJ Law Blog

To the top baby

Just wanted to pass along to everyone that Law.Alltop.com was foolish kind enough to add us to their list of featured legal blogs.

Their site is an easy-to-navigate aggregator of all the prominent (save for this one of course) legal blogs with convenient headline snaps from the most recent posts. All in all, a great shortcut to get caught up on all the day’s blogentia in one fell swoop.

Many thx to Alltop

S&W commemorative revolver

Within weeks of SCOTUS ruling Dick Heller had a II Am right to possess a pistol for self-defense, the District of Columbia informed him the right doesn’t extend to semi-auto pistols after it rejected his permit application for his 1911 .45, because the District considered such firearms to be too similar to machine guns.

Only someone who has shot neither would make such a foolish assumption.

After being denied a right to register his semi-auto handgun, Heller was successful in submitting a .22 revolver for registration. However, if Heller is successful in gaining a permit to keep his .22 revolver in his home, it will have to be disassembled and trigger-locked and/or kept in a safe. This requirement (although it does include an assembly exception while it is being used against an intruder in the home) seems to treat as dicta Justice Scalia’s admonition that the “District’s requirement … that firearms in the home be rendered and kept inoperable at all times … makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.” Dist. of Colum. v. Heller, No. 07-290, slip op. at 58 (June 26, 2008) (emphasis added).

Looks like it won’t be long before Heller II is foisted back upon the court system.

* * * UPDATE * * *

Looks like Dick Heller was equally displeased with the District’s new gun permit regulations, seeing as how he sued the District once again yesterday based, in part, on its disallowance of semi-auto handguns and its requirement that all firearms be kept disassembled and trigger-locked.

Thx to DC Dicta, the DCist, WaPo, and HotAir

For the coward pictured below.

About to rue the day

Today, the DPS released the security video of the arsonist who almost succeeded in burning the Governor’s Mansion to the ground.

Anyone with information about the possible identity of the person depicted in the video or picture above is urged to call investigators at:

512-506-2849,
512-506-2861,
512-506-2862, or
Crime at 800-252-8477.

Thx to the Austinist

Closest thing to heaven

My fair city of Austin is notorious for being a stagnant and stale legal market for those young lawyers with the audacity to attempt to practice here. Practice groups at various firms tend to merely jump from one address along Congress to another, instead of firms actually adding to their headcounts.

The stories are legion of uber-qualified attorneys from Biglaw NYC firms and Ivy Law being turned away by the BigLaw and BigTex Austin branches because of the incredible geographical demand Austin perpetually generates. It was rare for BigTex/Law satellites to open entirely new offices in Austin–that is, until now.

It all began in early 2006 when Dechert opened its Austin office with the first group of Dewey (then Ballantine, now LeBoeuf) emigres.

In early 2007 after the shuttering of Jenkens & Gilchrist (which coincidentally, was the subject of our very first post here at the SMSB), Virginia-based Hunton & Williams reopened its Austin office with the remaining Jenkens lawyers who didn’t spin off their own boutiques or join Winstead’s ranks.

Also in 1997, the Arkansas firm of Mitchell Williams opened its doors in Austin, but only began to expand its Austin footprint in May with the acquisition of longtime Austin firm Long Burner Parks & DeLargy.

After the announced closing of the Dewey office earlier this year, the majority of the remaining Dewey alumni headed over to McKool Smith, but three found their way to King & Spalding’s new Austin branch just a few months ago.

Now, word out tonight is that several Akin & Gump lawyers, including the managing partner of the Austin office, are leaving to open Greenberg Traurig‘s Austin satellite on August 1.

While all of these office openings certainly prove the maxim that Austin firms merely trade lawyers instead of adding them, because five new firms now have an entrenched presence here in Austin, it is entirely likely that more capacity for lawyers yearning to live interesting and meaningful lives in the ATL will be created.

As long as they keep Austin Weird, they’re welcome within the City Limits.

Wouldn\'t have it any other way

* * * UPDATE * * *

Due to my own oversight, I neglected to mention the 2007 founding of Yetter & Warden’s (now Yetter, Warden & Coleman) Austin office by several former Weil appellate lawyers, including the national head of their appellate practice group, former Justice Thomas clerk and Solicitor General of Texas, Greg Coleman.

Thx to the Austin Business Journal and Tex Parte Blog

Mightier

UT Law Professor Schiess has an excellent discussion going on over at his Legal-Writing Blog regarding the importance of proper citation to persuasive legal writing.

By way of fair disclosure, I am an avowed adherent to the “tyranny of the inconsequential,” as insisting upon correct citation has been labeled by some less fond of the practice.

From my experience writing for and editing law journals and clerking for judges, one must of course first put forth a cogent argument. But if you then decide to let the citations take care of themselves, you detract from the credibility you have established by your reasoning. You may still win if you have the better argument or more favorable facts, but I–for one–prefer not to engender snickering in my legal reader, no matter what the outcome of the underlying case.

My background is anectdotal and the sample size insufficient from which to draw statistically significant conclusions, but in my experience, lawyers (usually older and more of the trial variety) who deride other lawyers (usually younger and more of the post-trial variety) for their insistence upon employing correct citation format do so because they wouldn’t have the faintest clue how to cite something properly if you simultaneously smacked them upside the head with the Bluebook, the Greenbook (flawed though the 11th ed. may be), and the MUS.

Moreover, those lawyers I’ve encountered who would never bother to check a citation tend to have evidenced similar diligence in their reasoning as well. Back once upon a time, when it was my job to read briefs submitted by others, it was a very rare occurrence indeed when a brief that jumped out at me as being offensively lax in its citation was inversely impressive for its thoughtful analysis. The converse was also true: rarely were briefs that shone with impeccable citation burdened by slovenly reasoning.

Accordingly, I don’t view correct citation as a nice cherry to put on top of an otherwise impressive argument, or a useful complement to cogent analysis, but instead as the most basic demonstration of one’s elemental understanding of persuasive writing. This is particularly true here in Texas, where an improper notation of the subsequent history of an intermediate appellate case can directly impact the precedential weight that must be accorded the cited case.

Once you’ve lost credibility through incorrect citation, it’s hard to get it back through unassailable logic.

Thx to the Legal-Writing Blog

Don\'t Mess With Texas

Don't Mess With Texas

Unhappy with the SCOTUS ruling in Medellin v. Texas, No. 06-984, slip op. (2008 ) that formally recognized our Great State’s award-winning anti-littering slogan of “Don’t Mess With Texas” as official jurisprudential canon, the International Court of Justice attempted to once again force Texas to halt the executions of several Mexican nationals who made the eternally unwise choice of murdering Texans.

The curt reply from Texas to the World Court was, in essence, the same as it was to the Mexican army some one hundred and forty-three years earlier: “Come and Take It!”

Governor Perry‘s Director of Communications, Robert Black, explained:

The world court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court …. It is easy to get caught up in discussions of international law and justice and treaties. It’s very important to remember that these individuals are on death row for killing our citizens.

Black’s retort reminded me of Gov. Perry’s brilliant press-release-slapping of the EU when it tried to force Texas to halt its use of capital punishment almost a year ago:

230 years ago, our forefathers fought a war to throw off the yoke of a European monarch and gain the freedom of self-determination. Texans long ago decided that the death penalty is a just and appropriate punishment for the most horrible crimes committed against our citizens. While we respect our friends in Europe, welcome their investment in our state and appreciate their interest in our laws, Texans are doing just fine governing Texas.

God I love being a Texan.

Thx to the WSJ Law Blog and the Houston Chronicle

His Vinceness

No not that kind of retirement, although he apparently considered it after his first season in Tennessee, but Texas has decided to retire Vince’s jersey, along with several other UT luminaries from various sports: most notably in football Bobby Layne (22) and Tommy Nobis (60).

Young, Nobis, and Layne join Earl Campbell (20) and Ricky Williams (34) as the only other UT football players to have their jerseys retired.

Thx to VY, Tommy Nobis, and Bobby Layne

OK, none that measure the predicted success of the team, but I’ll take whatever I can get.

An endzone Bevo can be proud of

First, with the renovations to DKR-Texas Memorial Stadium northern endzone now complete, DKR now is officially the largest stadium in the Big 12 and the fifth largest in the country.

Now, if we can just get up to 110,000 ....

Second, Texas also tops the Big 12 in coordinator salaries, paying Greg Davis and Will Muschamp each $425,000 this season.

Thx to ESPN’s Big 12 Blog

Where the magic happens

Both SCOTX Blog and the Texas Appellate Law Blog have discussed the Court’s new digitization project which–thanks to some equipment on loan from Thomson, Reuters, West & Law–has now made available for free oral argument audio going back to 1990. West will later make written transcripts linked to the oral argument video (currently available for free via live streaming or archived back to March 2007) text-searchable and available via a subscription.

SCOTX Blog notes there may be curious errors in some of the older (i.e., pre 2004-05 term) oral argument mp3s that result from the old practice of flipping the cassette tape over upon which the audio used to be recorded. This job was always delegated (perhaps unwisely) to the briefing attorneys, who sometimes forgot to flip the tape over in a timely fashion.

Most appellate attorneys will undoubtedly make good use of the audio archives while dutifully preparing for an upcoming oral argument, but for those of you who may be as easily entertained as I am, the online availability of the audio recordings presents a unique opportunity to listen to cool old matchups like, say, the epic showdown between former Chief Phillips and former Justice Hankinson last year in Crown Cork, or former Justice Enoch‘s oral argument in a cause that revisited an opinion he wrote when he was on the bench.

Thx to Blake Hawthorne, SCOTX Blog, and the Texas Appellate Law Blog

Say it aint so

Success ruins everything.

David Lat, a former AUSA and federal circuit clerk who I first began to follow in mid-2004 when he anonymously ran the Article III gossip blog, Underneath Their Robes (one of the seminal progenitors of the modern legal blog) until he was outed as the proprietor by Jeff Toobin. He went on to serve a stint editing Wonkette, and then became the founder and editor in chief of Above the Law, which has grown into the lowly law firm associate’s blogospherical check on BigLaw shenanigans.

Well, due to his success at ATL, Lat has been promoted to oversee all of ATL‘s parent company’s sites; thus reducing his ATL blogging load substantially and forcing him to:

brush my teeth, put on clothes, and schlep into an office each morning.

We here at the SMSB wish him well and curse thank him for seeding our own little degenerative blogging afflication. It’s not often that a person can create and ride a sea change in a profession, but Mr. Lat certainly has and we thank him for his diligent, entertaining, and status-quo-shattering work over these last few years.

Thx to the
BLT

Now that\'s zealous advocacyAnd now looking like a sane person

Covington & Burlington (former) partner David Remes submitted his letter of resignation this past Friday after making worldwide headlines (which generously noted his firm affiliation) for dropping his pants to reveal his stylish tighty-whities in Yemen–of all places.

Remes apparently pulled the disrobing stunt to somehow show mistreatment of prisoners at GitMo (the indefatigable “liar, liar, pants on fire” defense perhaps?), but may have just wound up mistreating every unfortunate soul who can never forget the sight of him in his underpants.

Thx to the WSJ Law Blog

Over ... rated

Bleacher Report has a list out of college football’s seven most overrated coaches, and I gleefullly report to you that the coach holding the Most Overrated post is none other than OU‘s Bob Stoops.

Now, in a transparent attempt to appear not completely in the tank for Texas, I will say that I don’t think Bob deserves the top spot. The coach ranked number 2 on the list deserves top honors in my estimation: Notre Dame‘s Charlie Weis. At least Stoopie won a national championship just eight years ago, while Charlie has only managed to amass the worst single-season record in Irish history.

That said, the argument that Stoops is overrated is not without merit: after winning the 2000 title, his team lost two subsequent national title games (one of the opponents in which Texas prevailed against the following year in what has been hailed as “not only the best BCS bowl game ever played, but the best college football game ever played … period“) and two other BCS games, including to legendary powerhouse Boise State of blue turf fame.

Thx to Bleacher Report

Farewell

Tony Snow, former speechwriter for President H.W. Bush and Press Secretary to President G.W. Bush, passed away today after his long bout with colon cancer.

Tony was the most articulate and effective press secretary I’ve seen, and by all accounts, one of the most decent men inside the Beltway. He not only was the founding host of Fox News Sunday and a syndicated columnist, but the winner of the inaugural “Crawlin’ Kingsnake Trophy” (for which he beat out Bob Schieffer).

One of the things I always respected and admired most about Tony was his ability and willingness to take on the Whitehouse press corps and expose the liberal bent of their questions. He was very good at it:

GREGORY: It’s kind of a totality question, though. How you can hear these things and not conclude that it’s rejection of the President’s policy?

SNOW: Well, number one, “stay the course” is not the policy.

But you need to understand that trying to frame it in a partisan way is actually at odds with what the Group, itself, says it wanted to do. And so you may try to do whatever you want in terms of rejection, that’s not the way they view it.

GREGORY: I just want to be clear. Are you suggesting that I’m trying to frame this in a partisan way?

SNOW: Yes.

And this podiumslapping of Jim Axlerod of CBS News was a classic as well. Axlerod asked Snow if the White House was “isolated and out of touch” in what they say about Iraq and the politics of the war on Capitol Hill, to which Snow dryly replied:

No, no more than I think people look at you and think you are focused on defeat.

He was articulate and quick on his feet–much more so than his pathetic predecessor–and enjoyed as much friendly banter with the press corps as he did heated exchanges. A great example of the latter was when he chided CBS’s Harry Smith that he couldn’t “have his own facts,” and an amusing example of the former was with Bill Plante of CBS News:

Plante: Are you going to say you’ve met those benchmarks? You’ve met almost none of them.

Snow: You’re going to find out exactly what people have said when the report becomes available — within the next week.

Plante: If it’s about the benchmarks that you’ve laid out, there are very few that have been met, or they have been met in the most vaporous way. We’ve seen progress in the alliance between most of the sheikhs opposed to Al Qaeda. Oh good.

Snow: Again I’m not going to rise to the bait –

Plante: It’s vaporware.

Snow: Vaporware? What is vaporware?

Plante: Vaporware is software that has been promised but hasn’t yet been delivered.

Snow: I see. I was afraid it had to do with bodily functions and –

Plante: Oh no.

Snow: I was a little worried about it.

We only wish that Tony–as he told Helen Thomas when he left the Whitehouse last September–had lived to make “life a living hell” for another Whitehouse Press Secretary when he was her age.

Thx to Tony Snow for his service to our country

Sure looks like infringement to me

Mars, Inc., parent company of the M&Ms brand, posits that briefs, a cowboy hat and boots, and a guitar is not enough. Therefore, they argue, they can profit from their blatant appropriation of the likeness of the Times Square “Naked Cowboy.”

Riiiiight. Good luck with that defense.

Thx to Jossip and the NY Post

Is that a shovel in your hand or are you just happy to see me?

Is that a shovel in your hand or are you just happy to see me?

Earlier this week, it took the Wisconsin Supreme Court 34 pages to explain that a corpse cannot consent to sexual intercourse. Even more amazing is that the High Court’s opinion reversed the decision of two lower Wisconsin courts … and was dissented from on the merits by two of the supreme court justices.

Incredibly, the grave-robbing defendants’ attorney commented that the majority opinion was–I’m not making this up–“dead wrong, as it makes the entire statute superfluous” (emphasis added). Indeed.

Thx to How Appealing and the Telegraph Herald

Ruh Roh

Austin has a long and tortured history with the perpetually-advertised transportation nirvana that is purported to be commuter/light rail.

Well, I have to admit enjoying a little grin reading in this morning’s Statesman that a cadre of officials from the Federal Railroad Administration and Federal Transit Administration in town to discuss granting waivers to operate commuter and freight trains on the same railroad with Capital Metro experienced a minor mishap.

The commuter railcar in which they were riding (at the blazing commuter speed of 5 mph) derailed briefly. Thankfully, no one was injured in the incident, save for maybe the reputation of Capital MetroRail (whose predictable motto is “All Systems Go”).

Thx to the Austinist and the Statesman

Beeeeeer

It must indeed be the End Times when the erudite George Will finds himself agreeing with Homer Simpson: Beer is the root of western civilization.

So says King George in his op-ed in yesterday’s Washington Post:

No beer, no civilization …. The development of civilization depended on urbanization, which depended on beer.

Will credits his thesis to a recent tome by Steven Johnson entitled, “The Ghost Map: The Story of London’s Most Terrifying Epidemic—and How It Changed Science, Cities, and the Modern World.”

Speaking of Duff Beer, the South Lamar Alamo Drafthouse used to serve it (and it was surprisingly good as well), but not sure if they still do.

Thx to George Will and Volokh

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