The Legislature gavelslaps TxDOT

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

 

Apparently, not everyone was as enthralled by Heller as we were …

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

 

Former Army Judge Advocate General and Texas Tech Dean Walter Huffman resigns

* * * BREAKING * * *

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

 

Our condolences to Justice Baker’s family

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

 

Be careful what you wish for …

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.

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.

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

 

Are legal blogs now an essential check on inaccurate Big Media reporting?

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

 

A political misstep so bad, you almost have to just “lay back and enjoy it”

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.

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

 

Capitol offense

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.

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.

 

Gee, thanks a lot

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.

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

 

How Texas law schools should be ranked

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.

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.).

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.

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

 

Writ of please go away

This blog’s newfound buddy, Adam “[Gee, maybe I'm not so] Bulletproof” Reposa, is–unfortunately–back in the news.

Tex Parte Blog just came across the ad mentioned here a few months ago and used quite effectively by the prosecution as an exhibit at Reposa’s trial for demonstrating an alternative hand sign for “contempt.”

Reposa has filed a writ of habeas corpus with the Texas Court of Criminal Appeals complaining his 90-day contempt sentence is excessive. In his writ, Reposa alleges that he was denied due process and due course of law when “Judge Davis declined to follow criminal procedure in ascertaining applicant’s guilt” by allowing the state to introduce evidence of extraneous conduct, i.e., the ad mentioned above from something called Whoopsy magazine, which is apparently distributed in some Austin clubs.

Of course it is.

In a letter sent by one of Reposa’s attorneys to the State Bar’s Advertising Review Committee responding to the committee’s letter that threatened to report Reposa to the State Bar’s grievance committee, Reposa’s counsel justified the ad (presumably with a straight face) by stating:

If one was acquainted with Mr. Reposa when he was 11 years old, then they might connect this parody with him, but otherwise, no casual reader would regard this parody as an advertisement for a specific lawyer.

No, of course not. Except for the fact that the ad repeatedly mentions it references an Austin DWI attorney who has given himself the moniker, “Bulletproof.” It just so happens that there’s only one Austin DWI attorney–or any attorney in the state for that matter–who [in]famously holds himself out with the nickname “Bulletproof.”

Surely no one could connect those disparate dots?

Thx to Tex Parte Blog, Texas Lawyer, and Awesomeness For Awesome’s Sake

 

Rudimentary math for aspiring law school applicants

Res Ipsa has another great post today detailing the average starting salaries of Texas law school grads. Unsurprisingly, UT topped the list at $101,111 and Texas Wesleyan–the newest accredited law school in the state–provided the foundation for the list at $57,497.

Res Ipsa also includes a fascinating snapshot of a relative salary comparison tool from CNN Money that will help the curious decide if the grass is truly greener on the other side.

As an aside, for any of my readers that are looking to add a talented lawyer to their ranks, you should get in touch with young Mr. Benson Varghese, who runs Res Ipsa Blog and is currently a 3L at Texas Tech. Since debuting his blog in March of this year, it has consistently proven to be a fine legal read with invaluable content for the Texas Bar (of which Mr. Varghese will no doubt soon be a member).

Thx to Res Ipsa

 

The turncoat gene

Few who read this blog may be old enough to remember Carole Keeton Strayhorn Rylander McClellan’s 1986 run for Congress, but I do.

Back in ‘86, Carole “Keeton McClellan”–as she was then known–made enemies of her Democrat compatriots when she abruptly resigned from the State Board of Insurance with a full three years left on her term, and promptly switched parties so that she could run against the revered and longserving District 10 congressional representative, J.J. Jake Pickle. It wasn’t so much that people begrudged her ambition, but that she would so brazenly and inelegantly attempt to displace an LBJ-era icon in Central Texas politics who was literally beloved by his constituents.

In fact, so deserving of his constitutents’ affection was Congressman Pickle that I remember a tale told at his 2005 funeral that, throughout his years in Congress, he kept his home telephone number listed in the Austin phonebook so he was always—literally—just a phone call away from those who elected him.

Well, the Washington Times reports today that, ‘lo and behold, Mama Carole may have had something to do with her son’s recent partisan about-face with his former boss, 43.

Lil’ Scotty’s on the left.

Thx to the Washington Times and the Austin Chronicle

 

Toll roads: pay $6 to get there 20% slower

Ever get the feeling that the Capital Area Metropolitan Planning Organization (CAMPO) and TxDOT are flat-out lying to you about the supposed nirvana that will be a future Central Texas criss-crossed by toll roads?

Yeah, me too.

Well, here’s the proof. Austin American Statesman reporter Ben Wear cajoled a colleague to drive I-35 during rush hour while he cruised worry-free down the SH 130 toll road and then record who arrived at the toll road’s southern terminus first. According to Wear:

The tollways have been sold as a speedier alternative to the ravages of I-35 rush hour traffic. Toll road proponents have said that truckers, in particular, will flock to Texas 130 (and, eventually, Texas 45 Southeast) because time is money to them. Even with a $24 cash toll for truckers ($6 cash for passenger cars and pickups, $5.40 with a toll tag), the argument goes, it’s worth it to save the time.

So I decided to test that claim. I’d drive the tollway during rush hour and recruit a colleague to drive I-35 at the same time, then compare notes.

* * *

So last Monday morning, after synchronizing our watches on a frontage road just north of Texas 130’s departure from I-35, and agreeing that both of us would drive no faster than 70 mph in unrestricted traffic, we headed off, me to the tollway and Andrea on I-35. Who got to the intersection of FM 1327 and I-35 first?

* * *

Taking the toll road cost me nine minutes. And the toll I paid. But that’s not all it cost.

My total mileage: 54.8 miles, 11.5 miles more than the direct I-35 route. My Taurus tells me that I got 23.7 miles per gallon, so the extra mileage cost me a little less than a half-gallon of gas. That’s another $1.75 or so. I averaged 60.6 mph, Andrea 57.7 mph.

So, at rush hour, I paid almost $6 to get there 20 percent slower.

Fantastic. Small wonder the brain trust at TxDot was recently forced to admit a $1 billion “error” in its budget forecasting.

Thx to the Statesman’s Ben Wear

 

BigTex / MidTex smackdown

Following up on our earlier discussions of what metric best delineates BigTex vs. MidTex, (Gross Revenue or Profits Per Partner or Revenue Per Lawyer), Tex Parte Blog injected a new contender into the fray: Profitability Index (PPP / RPL). PI measures “whether equity partners are taking home more or less than the average revenue brought into the firm.”

Below, I’ve compiled the numbers for all the BigTex and MidTex shops (in descending GR order) that are more than just single-city or single-practice outfits, or Texas satellites of BigLaw. The outliers (both high and low) for each metric are highlighted.

Despite the thoughtful comments of a poster over at Greedy Texas, I still adhere to the belief that BigTex is more a measure of overall size, and therefore, relative market dominance. While I can’t argue that Fulbright’s PPP, RPL, and PI indices put it much more solidly in line with most MidTex firms, I remain convinced that a firm that brings in some $300 million more than most MidTex shops can’t be labled as anything less than BigTex. I don’t think a credible argument can be made that a firm bringing in some $650 milion per year cannot provide an order of magnitude difference in capability than a firm with a third the business. Inefficient and relatively unprofitable perhaps, but Big nonetheless.

I think the best example of how, perhaps at least PI is not as instructive a measure of a firm’s relative market standing as is GR, is evidenced by comparing the PIs of Akin Gump and Kelly Hart, which on their face, are not terribly disparate (1.41 v. 1.25). However, if you look at their respective GRs, Akin Gump brought in $700 million more than did Kelly Hart during FY 2007.

Thx to Tex Parte Blog

 

Only in Lubbock

It is rare that any happening in Lubbock makes the headlines over at How Appealing, but alas, Lubbock recently found itself featured therein thanks to something that could only happen in West Texas.

The Lubbock Avanlanche-Journal reported that a wild turkey (the real thing, not the libation) unsuccessfully attempted to enter the courthouse through an upper-floor window.

If there was any doubt as to the identity of the culprit, one had to look no further than the outline in the broken window pane for the authorities to make a positive identification. That, and the stunned turkey lurking in the bushes below.

Thx to How Appealing and the Lubbock Avalanche-Journal

 

“Achieving flow”

Some double entendres should never be put in print. See title, supra.

No, the above quote does not refer to what most non-distaff readers might assume. Instead, it actually describes a problem faced by many contemporary legal writers when attempting to sit down and write cogently.

In a recent article, Bryan Garner and others noted that the press of modern distractions, “including texting, e-mail on a desktop computer, Blackberry messages,” and–dare I say–blogs, lures lawyers into “losing concentration with what they’re writing about,” which ultimately “negatively impacts both the continuity and even the accuracy of their product.”

I, for one, think this is hogwash because … well, dangit, I lost my train of thought.

Thx to Westblog.net and the National Law Journal

 

Conservative SCOTUS all-stars and least-stars

Seventh Circuit Judge Richard Posner and his fellow University of Chicago Law School Professor William Landes have authored an article entitled, “Rational Judicial Behavior: A Statistical Study,” which devises a methodology to rank the forty-three Justices who have served on SCOTUS since 1937 from most conservative to least.

Their conclusion?

Four of the five most conservative [J]ustices to serve on the Supreme Court since Franklin Roosevelt [presidential term], including [Justices] Roberts and Alito, are currently sitting on the bench today.

I always find it troubling when commentators (even ones as undeniably accomplished and talented as Judge Posner) attempt to assign political motives (i.e., Legislative or Executive branch motives) to the judiciary because I remain convinced that political labels like “conservative” or “liberal” are ill-suited to describing judicial philosophy. Originalist jurisprudence is not a per se politically conservative concept just as viewing foreign law as persuasive authority is not a direct descendant of politically liberal thought.

Judge Posner and Professor Landes describe how they classified the conservativeness of the Justices by reasoning “[t]hat characteristic is usually proxied by the party of the President who appointed the judge—if it was the Democratic Party the judge is deemed ‘liberal’ and if the Republican Party ‘conservative.’” See Landes, William M. and Posner, Richard A., “Rational Judicial Behavior: A Statistical Study” (April 2008 ) at 2. U of Chicago Law & Economics, Olin Working Paper No. 404 Available at SSRN: http://ssrn.com/abstract=1126403.

While this may be a seemingly rational way to crudely guess the favored political affiliation of a Justice (particularly in the modern, post-Roe era), one need look no further than Justices Stevens or Souter–both appointed by Republican presidents–for evidence controverting this assumption.

Thx to How Appealing, U.S. News & World Report, and the Legal Theory Blog

 

Retentionally yours

Ever wondered what the retention rates are at Texas law schools? Glad you asked, Tex Parte Blog just so happens to have the rankings, care of Above the Law:

University of Houston Law Center: 1.79%
SMU Dedman School of Law: 1.81%
University of Texas School of Law: 2.13%
Texas Tech University School of Law: 2.99%
South Texas College of Law: 4.45%
Texas Southern University Thurgood Marshall School of Law: 6.99%
Baylor University School of Law: 7.23%
Texas Wesleyan University School of Law: 10.15%

These numbers are pretty interesting. I wonder if the schools with higher attrition rates advertised themselves as being more prestigious than their students found them to actually be, or if some other causal factor is at work.

I must say that I’m fairly shocked that UT’s attrition rate is as high as it is (and only third best in the state). Where are UT students transferring to I wonder?

Thx to Tex Parte Blog and Above the Law

 

How the mighty have slipped and fallen, part II

Back in June 2007, we noted former SCOTUS nominee Judge Robert Bork filed a $1 million slip-and-fall suit against the Yale Club for injuries he sustained while giving a speech there.

Well, he has now settled his suit for an undisclosed sum, and he will hopefully look before he leaps the next time he opines in public.

Thx to DC Dicta

 

Texas Watch tedium revisited

I just posted a response to a thoughtful comment made regarding my earlier jeremiad aimed at Texas Watch’s recent report entitled, “In the Shadows: A look Into the Texas Supreme Court’s Overuse of Anonymous Opinions.” Of course, after my recent discourse with someone purporting to be Adam “Bulletproof” Reposa, pretty much anything is–by comparison–civil, restrained, and respectful.

Please permit me to plagiarize myself and reprint some of my response here as I think it bears directly upon the merits–or lack thereof–of the most recent Texas Watch “study.”

[O]ne of the main thrusts of my argument is that the very jurisprudential purpose of a per curiam opinion negates the central tenet of Texas Watch’s argument that per curiams are being inappropriately used to dispose of legally complex cases that should be issued as an authored opinion.

Instead, I posit that the more likely cause of the undisputed rise in per curiam disposition of cases is attributable to the Court’s desire to clear its undenied backlog of cases—of which Texas Watch has previously complained. My point is that it wholly undermines what little credibility may be initially afforded Texas Watch to knock the Court for utilizing the only determinative tool at its disposal to address an urgent problem of which Texas Watch has publicly ridiculed the Court. Texas Watch can’t have it both ways.

To believe otherwise is not just to merely accuse the six Justices who vote to issue a given per curiam opinion of being complicit in flouting the very appellate rules they are charged with drafting, but it is to accuse all nine Justices of intentional malfeasance because every such per curiam opinion is authored en banc. No serious observer or critic of the Court would accuse every single Justice of being either so incompetent or malicious as that. That is why such claims cannot be taken seriously.

However, if your objection is really that I didn’t refute the individual merits of the fourteen cases incorrectly cited by Texas Watch in their report, let me indulge you.

At the outset, however, one should note that the political agenda (as opposed to legal analysis) of Texas Watch is revealed by their “[i]mpact” headings under each case’s discussion in the report. The political impact of any particular decision is, of course, constitutionally beyond the purview of the Court to decide. Indeed, that is why Texas has a legislative branch. But if the legal merits (or lack thereof) of a case demand a certain result, that result can very well have political impacts that are distasteful to the public at large. That is precisely how the system is supposed to work; so that the public can then go to their elected representatives in the Legislature and demand a change in the law to remedy the odious effect. But it is not constitutionally up to Court to masquerade as a super legislature. To assume otherwise is to reveal a basic and fundamental misunderstanding of not only remedial civics but of the constitutional function of the judicial branch.

Now to the cases, none of which are even vaguely legally controversial on their merits.

In In re RLS Legal Solutions, LLC, 221 S.W.3d 629, 630 (Tex. 2007) (per curiam), the Court hinged its holding on its earlier, authored opinion in In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001). Indeed, that is likely why this case was issued per curiam, because the central legal issue had already been decided by a previous, authored opinion.

In Schaub v. Sanchez, 229 S.W.3d 322, 322 (Tex. 2007) (per curiam), the “only theories under which the patient could recover were dismissed by agreed order in the trial court.” Error was not preserved by agreement of the parties; clearly a case hugely appropriate for per curiam disposition.

In Ed Rachal Found. v. D’Unger, 207 S.W.3d 330, 331 (Tex. 2006) (per curiam), the Court again referred to two earlier, authored opinions that resolved the determinative legal issue on appeal. See Austin v. HealthTrust, Inc.-The Hosp. Co., 967 S.W.2d 400, 401-02 (Tex. 1998 ); Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 723 (Tex. 1990.

In In re DuPont de Nemours & Co., 136 S.W.3d 218, 227 (Tex. 2004) (per curiam), the Court reversed a trial court’s discovery order as to one subset of withheld documents. While this opinion was a little more legally complex than those discussed above, it is far more likely that the Court issued it per curiam because it dealt with only a pretrial matter and involved some 530 documents out of the more than 55,000 pages produced.

In Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70, 72-73 (Tex. 2004) (per curiam), the Court held that driving a company truck to the house of the employee’s girlfriend, and then later some forty miles away to a night spot was a “material deviation from any implied permission he may have had to use the vehicle.” The facts aren’t even close here on the scope of the permission involved—hence the per curiam disposition.

In Dallas Metrocare Servs. v. Pratt, 124 S.W.3d 147, 149 (Tex. 2003) (per curiam), the Court again relied upon a previous, authored opinion’s holding that “mere incorporation of … [a] definition” from another statute “does not by itself manifest a clear legislative intent to waive immunity.” See Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003).

In Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 213 (Tex. 2003) (per curiam), the Court referenced several prior, authored opinions each of which that held a common carrier is an entity whose “business … is public transportation,” but not one to whom “such transportation is ‘only incidental’ to its primary business.”

In Tiller v. McLure, 121 S.W.3d 709, 714-15 (Tex. 2003) (per curiam), the Court held that a series of contentious, callous, and unprofessional contacts by the petitioner regarding two commercial construction contracts– while reprehensible–was not so atrocious as to qualify as “extreme and outrageous.” This one involved a little more legal analysis and might have been a somewhat closer question than those discussed above, but was clearly not so outside so the purview of the Court as to be labeled an “inappropriate” use of a per curiam opinion.

In Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 nn.7, 8 (Tex. 2003) (per curiam), the Court relied upon a multitude of previous, authored opinions that plainly held “some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence,” and “an inference stacked only on other inferences is not legally sufficient evidence.” No great jurisprudential stretch that.

In In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 208-11 (Tex. 2001) (per curiam), the Court vacated a pretrial consolidation order after relying upon the diagnostic framework established by a previous, authored opinion. In re Ethyl, 975 S.W.2d 601 (Tex. 1998 ). Once again, a pretrial dispute, the merits of which were plainly governed by a prior, authored opinion.

In Walls Regional Hosp. v. Bomar, 9 S.W.3d 805, 807 (Tex. 1999) (per curiam), the Court again relied upon several prior, authored opinions that established the record did not support the appellees’ contention that the conduct complained of originated and was then “transported into the place of employment from [their] private or domestic [lives],” or that the appellant intentionally injured the appellees.

As with many per curiam opinions, the Court in In Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156-57 (Tex. 1999) (per curiam) appeared to have rejected the proposed application of a well established recovery doctrine to novel yet simple fact-pattern.

In In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (per curiam), the Court hardly stretched its jurisprudential limits by relying upon a Fifth Circuit Court of Appeals case and the seminal authority on contracts that the mere fact the real parties in interest possessed “no bargaining power or ability to change the contract terms” is not, in and of itself, legally “automatically unconscionable or void.” See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Security Pac. Corp., 961 F.2d 1148, 1154 (5th Cir. 1992) (citing 6A ARTHUR CORBIN, CONTRACTS § 1376, at 20-21 (1962) & 7-9 (Supp. 1991)).

Finally, Texas Watch bemoans a per curiam opinion which is only six lines long. See Am. Home Assur. Co. v. Stephens, 982 S.W.2d 370, 370 (Tex. 199 (pre curiam). Moreover, the opinion itself is an answer to a certified question from the Fifth Circuit Court of Appeals, and defers to the lengthy legal analysis contained in a Fifth Circuit dissent—hence it’s brevity (and per curiam nature).

That’s it, that’s the sum total of juristic outrage of which Texas Watch complains. While Texas Watch has every right–and to the extent that it may even be correct–to complain of the political effect of these decisions, Texas Watch’s ire is misdirected. The legal bases for these per curiam decisions are sound and entirely appropriate for per curiam disposition. Texas Watch would do far better to publicly harangue and chastise the true arbiters of the perceived misery against which Texas Watch rails—the Texas Legislature.

Just don’t masquerade as legal experts presenting a sober and thorough analysis of the Court’s recent per curiam practice seriously testing what may indeed turn out to be a fair thesis. Instead, Texas Watch has manifestly either been incapable of attracting or hiring a seasoned appellate expert to conduct such an analysis, or they have more likely just not bothered to even attempt such an endeavor. Neither motive is a fair or rational basis to impugn the professional integrity and legal acumen of those who have garnered the electoral support of a majority of the voters in our Great State.

Thx to Lefty

 

Just for MSNBC men

Shenanigans points out the colorable differences between yesterday’s Hardball and today’s.

Thx to Shenanigans

 

Texas Watch wants it both ways

SCOTX Blog has a great post today regarding the latest screed from Texas Watch in their ever-vigilant quest to find new ways to sound imbecilic (my description only).

Texas Watch has apparently prepared a new “report” which purports to shine the light of truth on SCOTX’s “penchant for secrecy” by “using per curiam opinions inappropriately to avoid accountability for some of the tough decisions.“

Before I delve into the nonexistent merits of Texas Watch’s revelation, there is something curious going on here. Both the Houston Chronicle and the AP have published news accounts describing a report that Texas Watch has not even yet issued. Does anyone else find it odd that supposedly objective news outlets would be writing articles concerning PR dossiers that haven’t even been released to the public yet?

As to the merits, as any lawyer knows (which perhaps explains Mr. Winslow’s ignorance), per curiam opinions are a remedial tool used by SCOTX (and the courts of appeals for that matter) to more quickly dispose of cases that require only relatively straightforward error correction. See Hon. Robert H. Pemberton, One Year Under the New TRAP: Improvements, Problems and Unresolved Issues in Texas Supreme Court Proceedings, in State Bar of Tex. Prof’l Dev. Program, Advanced Civil Appellate Practice Course B, B-18 (1998).

In fact, SCOTX first began to increase its use of per curiam opinions as early as 1925, when–not coincidentally–the Court was suffering from such a severe backlog of cases that a separate judicial body was created to assist in the mass adjudication of pending cases. See David M. Gunn, “Unpublished Opinions Shall Not Be Cited as Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 ST. MARY’S L.J. 115, 117 (1992) (describing how, beginning in 1925, the Texas Supreme Court began to increase its issuance of per curiam opinions, “perhaps as a corrective device”); see also Act of Apr. 3, 1918, 35th Leg., 4th C.S., ch. 81, 1918 Tex. Gen. Laws 171 (made effective April 3, 1918, and reestablishing the Texas Commission of Appeals); Tex. S.J. Res. 8, 49th Leg., R.S., 1945 Tex. Gen. Laws 1043 (adopted at election held Aug. 25, 1945 eliminating the Texas Commission of Appeal).

Accordingly, per curiam opinions are used to more efficiently dispose of those cases upon which there is little or no disagreement, and which present fairly straightforward legal issues. In other words, if the Court is issuing more per curiam opinions, it is probably more accurately an indicia of an increased determination to reduce the Court’s backlog (previously bemoaned by Texas Watch) of appropriate cases than it is a Machiavellian attempt to shroud the deciding members from public scrutiny.

To the contrary, the use of such a jurisprudential mechanism actually INCREASES the scrutiny upon the Justices because a per curiam opinion is–by definition–issued by the entire Court. Every Justice is given equal praise/blame for the failings or triumphs of the decision, as compared to an authored opinion which can be attributed only to the majority of Justices who sign it.

Moreover, because the only type of case that is appropriate for per curiam disposition is one in which the legal issues are clear, straightforward, and non-controversial, Winslow’s claim that “[a]ll too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters” can simply not be taken seriously. Any decision likely to cause controversy or which demands the Court clarify a muddled or disputed area of the law is precisely the type of opinion least likely to be issued per curiam. And, as explained above, a per curiam opinion subjects every single Justice on the Court to elevated scrutiny, not just the authoring few.

Again, any basic analysis of the different types of opinions SCOTX is empowered to issue is a bit dry and legally complicated so I can’t really fault a group of non-lawyers (save for the one four-year lawyer Texas Watch recently hired) for failing to comprehend the finer points of the practice.

Most interesting to me is SCOTX Blog’s noting that the official statistics published annually by the Office of Court Administration track the per curiam opinions written by each Justice (see page four of the .pdf file).

While it is of course obvious that a single Justice must be logistically tasked to author a per curiam opinion, the identity of that Justice should remain anonymous because it is the Court as a whole that is issuing the opinion. The fact that OCA tracks and publishes this data, tying these opinions to the chambers which issue them (by number of opinions only) is more troublesome than any flotsam trotted out by Texas Watch.

Thx to SCOTX Blog

 

“Law firms at which you REALLY don’t want to practice for $1,000 Alex”

You’d think that law firms–of all places–would be bastions of political correctness and equality, or at the very least, the last professional environment where one could expect to have the following things happen.

First, it was Paul Hastings‘ (known for its employment law practice) extreme lack of tact (or timing) in firing an associate six days after she suffered a miscarriage. Then the firm had the audacity to coerce her into signing a non-disclosure agreement in exchange for three month’s pay (which she rightly refused).

They are now reaping what they sowed.

Now, a former associate of Bingham McCutchen is suing her former firm for failing to take action after she reported being drugged with tegretol (an anti-seizure medication that causes memory loss when taken with alcohol) at a firm holiday party.

Wouldn’t most folks assume that a LAW FIRM would be proactive if not aggressive in trying to get to the bottom of such criminal and damaging behavior?

Apparently not.

* * * UPDATE * * *

Bingham has responded with its official side of the story.

Thx to Above the Law

 

Here we go again

We reluctantly pass along to you that the Houston Chronicle is reporting SCOTX Justice Medina’s wife has been re-indicted for arson relating to the fire that destroyed the couple’s home last year.

Prosecutor Vic Wisner said he didn’t expect to seek any other indictments in the case, which would effectively clear Justice Medina in the matter.

Thx to Political Junkie and the Houston Chronicle

 

Kim Possible

The sky is the limit for first-term Austin City Councilwoman Jennifer Kim. When it comes to allocating the $260,000 a year with which her office is endowed (nominally to pay for the member’s salary and that of their staff), Councilwoman Kim has appropriated generously.

Oh, not on salaries mind you or other public expenses that wouldn’t raise the eyebrows of Austin’s taxpayers, but on questionable items such as:

$921 for a three-night stay at the W hotel in Manhattan
$700 for a membership to Continental Airlines’ ‘President’s Club’
$550 for a Sharper Image air purifier
$400 for 20 copies of Discover Your Strengths
$232 in Crane and Company brand stationary
$86 in Vera Wang barware
$67 for a Steam Wizard from The Sharper Image
$59 each for “Executive Rollerball” pens from The Sharper Image.

Using taxpayer dollars to buy designer barware, and a stay at a trendy Manhattan hotel? Has she been reading the Pedernales Co-op’s guide to fiscal responsibility?

When asked about these expenditures by a local reporter, Kim defended her acquisitional judgment by saying, “I spend what I need to out of my budget to be able to do the job. And in the beginning, it was a brand new office, a brand new staff, there were a lot of things that we needed.”

Like Vera Wang barware. Riiiiight.

I’ll give her the benefit of the doubt on the pens (my Mont Blanc makes those look reasonable), the stationary, the suit steamer, the travel club membership, etc., but–despite being an Aggie–she should know enough not to use public funds to buy any of these items from expensive vendors, if at all.

This is not the first example of Kim’s poor judgment however. In early 2007, she created a furor by indignantly attempting to bypass airport security at ABIA, claiming nonexistent VIP status. When informed her status as a member of the Austin City Council conferred her no special security rights, Kim said “I didn’t know it was a [Transportation Security Administration (TSA)] issue, … I thought since it was our airport and we own it, and if we are pre-cleared, we could get through.”

Uh, ask anyone who has flown since 9/11 if they are aware TSA runs airport security.

As reported elsewhere, Kim’s antics have made her hard to work with, running through at least three executive aides since she took office in 2005.

Her airport shenanigans have even given her electoral opponent a campaign slogan, “I’ll be happy to stand in line with you at the airport anytime.”

Thx to KVUE’s Political Junkie, the Austin Chronicle, News 8 Austin, and PinkDome

 

A passage that would drive Bryan Garner craaazy

In Justice Ralph Anderson’s recent opinion in Wieters v. Bon-Secours-St. Francis Xavier Hospital, Inc., No. 4374 (S.C. Ct. App. Apr. 23, 2008 ), he opines:

The cognoscenti of health care nomology trust and rely upon Peer Review Statutes as the quiddity and hypostasis of the hospital/physician relationship. The quintessence and elixir of the peer review process is confidentiality.

Okay, while I am probably one of the worst offenders of writing in this fashion, even I think this passage is a tad much. I’m not nearly as offended by the use of obscure or big words–I happen to think that modern, simplified language wrongly ignores many more precise if overly-loquacious terms favored of old–as I am by their redundant or sloppy use.

The tipoff for me here is the use of the conjunctive “and” twice in the span of eleven words. There is no elegance in the phraseology, “quiddity and hypostasis” or “quintessence and elixir,” only length. The point would have been much more eloquently made if the author had chosen one term or the other, instead of throwing both in for good measure–twice.

Plus, I like to reserve this kind of florid language for times when you are trying to make a point with either humor or irony. It’s okay to sound pompous in my book, as long as you do so with a wink or some wit. A good rule of thumb I follow is to never use more than two words that your reader would likely have to look up in a single sentence (and then only rarely). If you must or you insist on using such words, spread them out through several paragraphs so they don’t hit your reader all at once. Here, Justice Anderson used six obscure terms in two adjacent sentences.

Of interest, one commentator over at Volokh notes that Justice Anderson is notorious for such jeremiads (sorry, I couldn’t resist).

Thx to Volokh and the South Carolina A