Clearly erroneous


"I reckon I'm as American as anyone from Tennessee"

Y’all may have noticed I haven’t posted in the past few weeks, and my absence has been due in part to vacation, and in part due to other considerations as well (read billable hours).

Accordingly, I am signing off for a while. Many thanks for your patronage over this last year and a half or so, and continued success to all of you.

-020033

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

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

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

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

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

Officially incompetent

After the leaders of both houses of the Texas Legislature sent a very strongly-worded to the State Auditor in late February calling for review of TxDOT‘s “questionable accounting procedures,” including TxDOT’s projection of a $3.6 billion shortfall by 2015 without accounting for some $8 billion in already-approved road bonds, and its admission of $1 billion “error” in its budget forecasting, the Texas Sunset Advisory Commission (the “Commission”)–charged with recommending every twelve years whether targeted state agencies should be done away with–unsurprisingly issued a stinging rebuke of TxDOT early last month:

Sunset staff found that this atmosphere of distrust permeated most of TxDOT’s actions and determined that it could not be an effective state transportation agency if trust and confidence were not restored …. Significant changes are needed to begin this restoration; tweaking the status quo is simply not enough.

In its report, the Commission called TxDOT “out of control” in pursuing its toll-road agenda. So disgusted with TxDOT was the Commission that it recommended abolishing altogether the five-member Texas Transportation Commission which oversees the agency and replacing it with a leaner executive structure composed only of the agency’s executive director and a single commissioner. The final major recommendation of the Commission was that TxDOT undergo sunset review again in just four years’ time, instead of the normal 12-year review cycle.

Thx to the Statesman

Zzzzzzzzz

Namely, Justice Ginsburg, who reportedly fell asleep during the reading of the dueling Heller opinions yesterday at SCOTUS.

And as a commenter correctly points out over at Volokh, this is not the first time Justice Ginsburg has been slumber-challenged in the Courtroom. Back in 2006, during the oral arguments in the Texas redistricting case (League of U. Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), Justice Ginsburg apparently snoozed long enough for the Court artist to capture it for posterity.

In her defense in both instances however, anyone who could stay awake through the redistricting mess was likely chemically-imbalanced, and Justice Ginsburg had no doubt read every word of the 154 pages of opinions in Heller, so there wasn’t any great need for her to remain conscious during the reading of the summaries.

Thx to Volokh and the BLT

Thanks for the memories

Walter Huffman, Dean of Texas Tech’s law school since 2001, and former Judge Advocate General of the Army, announced today his intent to resign effective following this upcoming school year (Spring 2009). The one-year lead time is apparently to allow the school time to conduct a thorough search for his replacement. No word on where Dean Huffman is off to.

Everything I ever heard about Dean Huffman was beyond positive, and I know that he had been ambitious in his efforts to raise both the profile and the academic statute of TTU’s law school. They will no doubt miss his leadership, and owe him a debt of gratitude for his successful and dedicated efforts as well.

Thx to an anonymous aspiring lawyer

Too soon

I read with great sadness this weekend of former Texas Supreme Court and Dallas Court of Appeals Justice James Baker‘s passing. I got to know him only briefly, but I can vouch that his stellar reputation among those who appeared before him was well-earned. He was giant both in his jurisprudence and in the admiration he rightly enjoyed from his colleagues and peers. He will be greatly missed.

Thx to SCOTX Blog and the Houston Chronicle

What to do when your print divisions are floundering?

Not realizing that mutual linking actually drives advertising revenue by boosting web traffic rather than detracts from it, the AP recently came out with a shockingly obtuse pricing scheme that purports to charge blogs up to $12.50 for as little as 5 excerpted words from an AP story.

Forward thinking

Apart from the obvious and dubious legal veracity of such a proposition, the AP apparently failed to consider or conceive of the potential reciprocal effects of such a policy.

New logo?

Prominent blogger Michelle Malkin recently calculated the amount the AP would owe her under its own pricing schedule for its quotation of her content to be $132,125.

She did the same calculation for Patterico and found the AP potentially owes that site $188,750 under the AP policy. Patterico commented on the AP’s use of Patterico‘s content, remarking:

So am I going to be an a[$$] and threaten to charge them, or sue them, or demand that they remove the quotes? Of course not. They benefited from my content and I benefited from their link.

Thx to Michelle Malkin and Patterico’s Pontifications

The accused

Last month, the Texas Appellate Law Blog had a great post on the (believe it or not) benefit legal blogs offer to the legal landscape at large. I would add one other entirely unexpected yet undeniably valuable benefit to that list as well, as evidenced by the media fracas over Chief Judge Alex Kozinski‘s recent travails.

I have purposefully stayed away from writing about this story because it struck me from the beginning as likely a bogus “scandal.” I was wrong to do so, but not because the story had any merit, but because it turns out the blogosphere actually served to get the truth out.

In brief, the L.A. Times published a story at the urging of a disgruntled litigant who—as is frustratingly all too common—insisted on lambasting the four trial judges and at least six appellate justices (including Chief Kozinski) who held against him of bias and judicial misconduct. Riiiight. The L.A. Times story revealed that Chief Kozinski had various files stored on his family’s server that the paper framed as pornographic and even as examples of beastiality but that were really just so much ribald and off-color humor.

As Professor Volokh explains:

And some of the files contain what is basically—if what I saw at Patterico‘s site is representative—visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.

* * *

Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I’m sure they aren’t the kinds of things some people would enjoy seeing. But he wasn’t trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it’s a national news story.

Chief Kozinsky’s wife put it even better:

The reporter describes the handful of comic-sexual items as follows: “the sexually explicit material on the site was extensive.” He then includes graphic descriptions that make the material sound like hard-core porn when, in fact, it is more accurately described as raunchy humor.

* * *

The fact is, Alex is not into porn—he is into funny—and sometimes funny has a sexual character.

So, the only real controversy at issue as a result of all the hubbub was that Chief Kozinski was presiding over an obscenity trial when the story broke. However, any traction that valid potential conflict rightly had was quickly defused when, within just a few days of the story’s printing, Chief Kozinski recused himself, declared a mistrial, and called for an investigation into the controversy surrounding his stored web files.

Which, after much exposition, brings me back to my original point. If one were to have only read the L.A. Times story, you would have thought the Chief of a federal circuit was keeping porn on his work computer and making it available to the public. It was not until the legal blogosphere started investigating further that it came to light that the evidence upon which the story was based had been shopped around to several media outlets for months by a disgruntled litigant, that the files in question were not really pornographic at all, and that the “website”—really a server subdirectory—upon which they were stored was not meant to be publically accessible.

So, after entirely too much prologue, my point is that the legal blogosphere can even—in rare instances—be useful in combatting slovenly reporting by major news outlets that only serve to tar and tarnish the reputation of non-political actors as are most appellate courts and jurists. Chief Kozinski himself has now recognized that the legal blogosphere may serve at least one useful purpose—providing fuller context and facts after a media hit-piece has been released—after having once famously derided the utility of legal blogs:

I hate ‘em. Hateful things. . . . I just think it’s so self-indulgent, you know. Oh, I’m so proud of what I’m saying, I think the world instantly wants to know what I’m thinking today. People wake up thinking, hmm, what does this person, whoever the blogger in question is—I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can’t really have breakfast, really enjoy my day until I hear the great thoughts of Howard Bashman—I don’t think so. I go for months without ever knowing what Howard has to say. So I don’t know. I find it sort of self-indulgent. And I find it so grandiloquent.

By the way, Chief Kozinksi is absolutely correct on this point: all of us legal bloggers are—to some extent or another—at least partially self-absorbed and hubristic. Why else spend valuable billable time opining on topics about which no one asked our opinion?

On a much smaller scale, I have felt forced to use this blog in much the same fashion as Patterico and Above the Law have used theirs on this matter to combat the all too numerous instances of the Texas media blindly parrotting the tripe constantly spewed forth by Texas Watch. I have no idea if my hopefully somewhat-cogent rantings have had much of an impact, but it is my pleasure to stick up for our vastly-underpaid and supremely-talented judiciary when it is ethically restrained from responding on its own to such baseless bilge favored by Texas Watch and now the L.A. Times.

Thx to Above the Law and Patterico’s Pontifications

Jacka$$

How bad does one’s political blunder have to be to not only force the end of a previously promising gubernatorial bid, but to impact a presidential race almost two decades later? Very, very bad indeed.

Many here in Texas have distant and dusty memories of the West Texas oilcatter and Aggie, Clayton Williams, who ran unsuccessfully for governor against Ann Richards in 1990. His campaign was going fairly well until he started lobbing rape and drinking “jokes” against his opponent who had publicly acknowledged struggles with alcohol.

Classy

Perhaps almost as unforgivable as his tasteless broadsides against Governor Richards, Claytie also made headlines when he refused to shake her hand before a debate in Dallas.

Well, John McCain‘s army of vetting wizards apparently failed to uncover these obscure political nuggets in Claytie’s past when they scheduled a fundraiser for Senator McCain at Claytie’s house in Midland. Senator Obama‘s team was quick to point out Claytie’s unsavory past, and McCain rescheduled the fundraiser, but decided to keep the $300,000 or so already raised with Claytie’s assistance.

Thx to the Politico’s Jonathan Martin and Texas on the Potomac

Early Sunday morning, some cowardly soul set fire to the Texas Governor’s Mansion. Completed almost one hundred and fifty-two years ago on June 14, 1856, the Governor’s Mansion is one of Texas’s most historic structures, having housed Sam Houston during his first term as Governor.

In the downstairs parlors:

where Texas’ first presidential visitor, William McKinley, was received in 1901, plaster could be seen cracked and broken. Smoke damage was heavy, and windows were broken and charred.

The dining room—where famed humorist Will Rogers once ate so much chili with Gov. Miriam Ferguson that he had no room for dessert — was blackened and still smoldering.

Because the mansion was currently undergoing an extensive renovation, thankfully “all of the furnishings and official items had been removed” including “the window casements.” Some these irreplaceable items include original and seminal Texas history works of art and Stephen F. Austin‘s writing desk.

I’m not a criminal lawyer, so I don’t know what the Penal Code provides as a sentence for arson, but I’m all in favor of upping it to life in prison in this instance—or even worse—permanent banishment from Texas. Whatever misguided and mangled soul set this fire, they’ve forever given up their right to enjoy life in our fair State.

unbelievable

unbelievable

unbelievable

Thx to the Austinist, the Statesman, BurkaBlog, and State Fire Marshal Paul Maldonado, who is leading the investigation and has promised that “[w]e’re going to come get the person responsible for causing this damage.” Amen brother.

Bada$$

Since leaving office, national appellate star and former Texas Solicitor General Ted Cruz has been busy beginning to build the U.S. Supreme Court and national appellate practice at Morgan Lewis.

Well, the “U.S. Supreme Court” end of that effort may have just gotten an ill-timed kidney punch from one of Cruz’s new partners, Daniel Johnson, Jr., in the firm’s San Franscisco office.

Nice assist

Johnson, a mid-70s graduate of Yale Law School was recently interviewed for a story by the American Lawyer examining whether Justice Thomas‘s black Yale Law contemporaries faced similar employment struggles as he initially did.

Johnson’s less than eloquent, on-the-record response to a question regarding whether Thomas’s argument that Yale’s affirmative action program made his law degree worthless?

Bullsh[!]t.”

Lovely. Just as Cruz is attempting to organize and lead a first-rate national appellate practice at his new firm, one of his own partners hauls off and profanely insults—in writing—one of the five votes for which Cruz will be vying on a regular basis.

Thx to the WSJ Law Blog and the American Lawyer

The U.S. News & World Report law school rankings have long been criticized for numerous and valid reasons by people who know of what they speak (unlike myself), but I think Res Ipsa has crystalized what criteria should really be considerd when ranking law schools—if the purpose in ranking these schools is to help inform where an aspiring applicant will spend the next the three years of indentured legal servitude.

Namely, return on one’s dollar.

Most law school students could care less about most of the indices USNWR uses to rank law schools, namely the size of a school’s library, median entering GPAs or LSAT scores, per capita expenditures, or even the employment rate for graduates (because what does it matter that you have a job if that job pays far less than the amount of money you just shelled out for the privilege of securing said job). Of much more importance to most law school students is the relative assurance they have that a given law school will provide them with an education that will likely allow them to attain a positive net worth at some point in their lives.

depressing

There are only three law schools in Texas where a graduate will, on average, make more in their first year of practice than they paid in tuition for three glorious years of legal tutelage: UT, Houston, and Texas Tech.

However, I would add two columns to Res Ipsa‘s excellent comparison chart above (and if I weren’t much lazier than Res Ipsa, I’d add in Thurgood Marshall‘s numbers as well): the return ratio of these schools when you factor in room and board (which all of us know who survived law school grossly underestimates the essential “beer” portion of the “board” figure, not to mention all kinds of other significant costs like books, etc.).

hmmmmm

Taking into account room and board, nobody makes enough their first year to make up for what they expended during law school, but some schools fall so woefully low on the this list that I think the fallacy of the USNWR ranking of these schools is revealed.

what a bargain

So, according to USNWR, SMU is the second best school in Texas, but according to the modified return rate ranking, it’s one of the very worst. Same with Baylor (third best according to USNWR, sixth out of eight schools measured according to the modified return rate ranking).

However, USNWR did accurately rank UT as the best law school in Texas, and came awfully close on both Houston (third versus second) and Texas Tech (fourth versus third).

So, all hype and boosterism aside, I think one would have a pretty hard time arguing UT, Houston, and Texas Tech are not the top three law schools in the state. Conversely, it’s hard to rank either Baylor or SMU in the top three when you consider how much longer it will—on average—take a graduate to make back their law school investment.

I freely and anectdotally admit however that—hands down—the most impressive and intellectually-imposing lawyers I’ve ever worked with, against, or for were largely SMU and Baylor grads.

All this aside, it goes without saying that if you graduate in the top ten percentile, have served on a journal (or better yet, been pubished in or been selected to the executive board of said journal), you will likely be able to secure a clerkship somewhere and then go on to make oodles of money in the private sector, if so desired.

* * * MEA CULPA UPDATE * * *

Having had some time this afternoon to reflect on this morning’s rant, I think I have to temper my enthusiasm for the modified return rate metric somewhat. Namely, I don’t think that it is as indicative of the best law schools in the state as it is merely a investment-value measurement.

While I believe that average starting salaries among Texas law schools are misleading because I would posit that SMU, Houston, and South Texas‘s numbers are biased upward because most of schools’ graduates remain in either Dallas or Houston to practice, and St. Mary‘s is largely as low as it is because a large percentage of its graduates remain in San Antonio to practice, average starting salary is still probably a greater reflection of school prestige than is a return rate index.

Under my reasoning put forward earlier today, Harvard, Yale, and Stanford would all likely have much lower return rate rankings than their state school brethren, but no one could argue that these schools are not the best in their respective states, if not the country.

Thx to Res Ipsa

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