“New” Screech at SCOTUS

In our continuing series chronicling child actors gone good, we are pleased to introduce you to Isaac Lidsky, formerly known as Barton ‘Weasel’ Wyzell (aka, the new Screech) on “Saved by the Bell: The New Class.”

Since then, Lidsky has gone on to graduate from Harvard College and Harvard Law School after completing a stint on the Harvard Law Review, clerk for Third Circuit Judge Thomas Ambro, and practice in the Justice Department’s Civil Division and later at Jones Day.

Henceforth, he will also be known as a SCOTUS clerk, where he will be clerking for retired Justice O’Connor during the upcoming term.

Oh, and he’s accomplished all this despite being legally blind for the past fifteen years. To donate to the vision-impairment foundation he created, go to Hope for Vision’s website.

Thx to Above the Law and the Legal Times

 

Citation trifecta

Just one more word about Heller and then I’ll stop I promise.

Most attorneys would consider it a lifelong honor to have any of their works cited just once in a SCOTUS opinion, or even merely mentioned in oral argument—the “Holy Grail” of citation as it were. But UCLA Professor Eugene Volokh (of Volokh Conspiracy fame) accomplished today one of the most impressive citational feats any lawyer could hope for.

Justice Scalia cited not just three times to Professor Volokh’s work, but to three different articles penned by the good Professor. That’s the juristic equivalent of winning not just the Kentucky Derby, but the Triple Crown. In fact, I think the SCOTUS majority’s citations to Professor Volokh’s work numbered just shy of its citations to Blackstone.

Truly an amazing feat by Professor Volokh and one worthy of awe and praise alike. Congrats to the Professor.

Thx to Professor Volokh and Justice Scalia

 

Justice Scalia’s juristic tour de force

A hurriedly-compiled list of some of Justice Scalia’s (”AS”) most cogent and bombastic (read benchslap-tastic) points is recounted below. Justice Stevens (”JPL”) wrote a dissent vainly attempting to combat AS on AS’s home court of originalist historical context, and Justice Breyer (”SGB”) authored a dissent devoted to supporting the D.C. (the “District”) gun ban itself. Notably, AS reserves his harshest criticism for JPL (calling him “dead wrong” at one point). See Dist. of Colum. v. Heller, No. 07-290, slip op. at 5-6 n.5 (June 26, 2008).

Part II of the opinion delves into amazingly intricate detail as to what is the meaning of the II Am. AS begins by acknowledging that the II Am. is divided into a prefatory clause (the “well-regulated militia” portion favored by collective right proponents) and an operative clause (the “right of the people” portion favored by individual right proponents). AS makes clear that a prefatory clause may operate to clarify the operative clause, but it cannot “limit or expand the scope of the operative clause.” Id. at 4. He chides JPL for suggesting that such a construction would impermissibly render the prefatory clause without effect, because:

[A] court has no license to make [a clause] do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

Id. at 4 n.3. Such a construction, AS explains, would illogically “cause the prologue to be used to produce ambiguity rather than just to resolve it.” Id. at 5 n.4.

AS next turns to the individual nature of the right, reminding the dissenting Justices that the other two times the phrase, “right of the people” is used in the Bill of Rights (I & IV Ams.), it is uncontested that such language confers an individual right.

Examining the substance of the right, AS explains:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications … and the Fourth Amendment applies to modern forms of search, … the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Id. at 8 (emphasis added) (citations omitted).

AS positively disassembles JPL and the District’s construction of the phrase, “bear Arms:”

In any event, the meaning of “bear arms” that [the District] and [JPL] propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war—an absurdity that no commentator has ever endorsed …. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once:“weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Id. at 13 (emphasis added) (citations omitted).

AS was apparently less swayed by the amicus brief filed by a group of linguists than was JPL, remarking:

A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics).

Id. at 15 (emphasis added).

AS is also unmoved by JPL’s creative grammatical interpretation of the II Am.:

[JPL] believes that the unitary meaning of “keep and bear Arms” is established by the [II Am.]’s calling it a “right” (singular) rather than “rights” (plural) …. There is nothing to this.

Id. at 18 (emphasis added). AS adds in a footnote:

Faced with this clear historical usage, [JPL] resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “to keep and bear” is established …. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution ofthe United States” is not a whit different from a promise “to supportand defend the Constitution of the United States.”

Id. at 18 n.14 (emphasis added).

Unsurprisingly, when JPL attempts to broadside AS on his own turf—that of interpreting legislative history—AS is blunt: “[JPL] flatly misreads the historical record.” Id. at 30. I think the most revealing barb aimed at JPL by AS is also the most prescient. Replying to JPL’s insistence that commentary subsequent to the ratification of the II Am. somehow bore upon the understanding of those who ratified it, AS is brilliant (as usual):

Before proceeding, however, we take issue with [JPL]’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task …. “Legislative history,” of course, refers to the pre-enactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding …. “Postenactment legislative history,” … a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote.

Id. at 32 (emphasis added). In one fell swoop, AS calls out the jurisprudentially liberal wing of the Court’s central tenet of juristic philosophy. Masterful.

AS easily sweeps aside JPL and the District’s contention that United States v. Miller, 307 U.S. 174 (1939) could be read to support only a militia’s right to bear arms because:

Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen …. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Id. at 50 (emphasis added).

One of my favorite passages is a subtle dig at JPL’s professed concern for the judiciary at the expense of the citizenry:

As for the “hundreds of judges,” … who have relied on the view of the Second Amendment [JPL] claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms.

Id. at 52, n.24 (emphasis added). Game … set … match.

AS concludes by discounting the faux concern raised by SGB that the majority opinion “leav[es] so many applications of the right to keep and bear arms in doubt,” reminding his colleague that:

[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first in-depth Free Exercise Clause case, left that area in a state of utter certainty.

Id. at 63 (citations omitted).

AS’s second-to-last sentence in the opinion is a skillfully-drafted and subtle rebuttal of the use of the Court by his jurisprudentially liberal colleagues—past and present—to juristically abrogate the Constitution based on modern constructions of ancient legal precepts. In it he concludes that, while the political or cultural viability of the II Am. in modern society:

[I]s perhaps debatable, … what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Id. at 64 (emphasis added).

Also of note, AS cites not to just one, but two three of Professor Volokh’s articles in the majority opinion. That is a very rare honor indeed, but also an undisputedly well-deserved one by Professor Volokh. See id at 3, 11 n.8, 24.

Also, one of the cites is to Texas’s very own Review of Law & Politics, congrats.

* * * UPDATE * * *

More quotes from the majority opinion less of the benchslapping variety can be found at SCOTUSBlog.

Thx to the Heller majority, and as always, to Justice Scalia for his intellect and wit

 

SCOTUS strikes down the D.C. gun ban

SCOTUS just announced it has affirmed the D.C. Circuit’s decision striking down the District of Columbia’s gun ban.

More details on the text of the opinion (how far it goes in upholding an individual right to bear arms, etc.) as they become available.

* * * UPDATE * * *

From SCOTUSBlog:

10:13 Ben Winograd -
The Court has released the opinion in District of Columbia v. Heller (07-290), on whether the District’s firearms regulations – which bar the possession of handguns and require shotguns and rifles to be kept disassembled or under trigger lock – violate the Second Amendment. The ruling below, which struck down the provisions in question, is affirmed.

Justice Scalia wrote the opinion. Justice Breyer dissented, joined by Justices Stevens, Souter and Ginsburg. We will provide a link to the decision as soon as it is available.

10:13 Tom Goldstein - Second Amendment protects an individual right to possess a firearm.

(emphasis added).

* * * UPDATED UPDATE * * *

No plurality and and two dissents (so should be fairly clear precedent).

* * * MORE UPDATES * * *

From SCOTUSBlog:

In District of Columbia v. Heller (07-290), the Court nullified two provisions of the city of Washington’s strict 1976 gun control law: a flat ban on possessing a gun in one’s home, and a requirement that any gun — except one kept at a business — must be unloaded and disassembled or have a trigger lock in place. The Court said it was not passing on a part of the law requiring that guns be licensed

* ** Read the opinion HERE * * *

Thx to SCOTUSBlog

 

Is the Roberts Court trending towards “being less strictly constitutional and more strictly awesome?”

I’ve probably already derived too much jurisprudential pleasure from analyzing the SCOTUS plurality opinion handed down this past April in Baze v. Rees, No. 07-5439, slip op. (Apr. 16, 2008 ), but the Onion has only just begun to analyze its merits.

* * * WARNING, NSFW LANGUAGE * * *

“I am the Law!”

Thx to Volokh

 

More thoughts on judicial ethics

The recent headlines concerning Chief Judge Kozinski have reminded me of the central misunderstanding or willful ignorance some judicial critics suffer from in their critiques of the judiciary. Namely, their steadfast belief that the mere appearance of impropriety must mean there is actual ethical impropriety afoot, and the absence of such appearances must mean there is none.

This week, I came across an op-ed Chief Kozinski wrote for Legal Affairs magazine back in 2005 regarding the appearance of impropriety and found it refreshingly blunt and accurate.

My problem with the appearance-of-impropriety standard is that it promotes the wrong idea—that in order to keep judges from acting unethically, ethical rules must prevent judges from appearing to act unethically. It also seems to suggest the converse: that if judges appear to be acting ethically, they probably are. Nothing could be further from the truth. A judge can appear to act ethically and still betray his responsibility in essential respects and in ways no one will ever know about[, namely] … [g]iving short shrift to small cases, signing off on the work of staff and calling it my own, bending the law to reach a result I like, and the dozens of other ways in which I feel the urge to do something unethical, yet wholly undetectable by anyone other than me.

As to the furor that is often raised about a judge presiding over a case in which the judge has at least somewhat of a financial interest, Chief Kozinski explained:

I file a financial disclosure report every year, giving the world a list of my assets, just so litigating parties can confirm that I did not—God forbid—sit in a case involving a corporation whose stock I hold. I find this requirement a nuisance and a bit dangerous and intrusive, because it makes public information about me and my family that I would prefer to keep private. But the report is required by law and is considered an important safeguard of judicial integrity.

Yet I can’t imagine that I could possibly be tempted to change my vote in a case because I own stock in one of the parties. If money mattered to me, I would be in private practice and, in a month or a week—maybe an hour—I would make much more than my one hundred shares of AT&T could conceivably change in value based on my vote in a case. The idea that I would give up my honest judgment in a case for a few dollars is beyond silly—it’s ludicrous and insulting.

Most professional court critics either can’t comprehend or refuse to accept that a jurist wouldn’t change his or her vote in a matter just because there might be some financial advantage to be gained by doing so.

I continue to believe that this disconnect on the part of these critics emanates from their true ignorance of just how profitable and lucrative private practice is and would undoubtedly be for an appellate judge who left the bench. As I discussed in a post almost a year ago regarding whether campaign contributions to Texas judges are really such an irresistibly corrupting force (a generally bad idea—yes, absolutely corrupting—no):

Partners at BigTex firms in this state (where the majority of sitting SCOTX Justices have begun their practices) routinely make anywhere from $400k to $2.5 M per year. Counting the new raise SCOTX Justices just received in 2005, they now make $150k per year, a full $10k less than their clerks do as soon as they walk out of the Tom C. Clark building.

How on Earth could a few thousand or even a few million in campaign donations (which must be reported and can’t be spent on personal expenses without risking imprisonment and disbarment) be even slightly corrupting to someone who could make that much and more in the private sector without any of the ethics reporting requirements or public scrutiny?

The sheer ignorance of some like Texas Watch or Texans for Public Justice of the personal financial sacrifice imposed by choosing to sit on the bench instead of in a firm office is glaring. Anyone so easily corrupted by money would never choose to walk away from the private sector in order to someday “pay back” donors with favorable decisions, all for a relative pittance in compensation.

Thx to Chief Kozinski and Legal Affairs

 

Drafting dissents 101

One might as well treat Justice Scalia’s dissent from last week’s majority opinion in Boumediene v. Bush, Nos. 06-1195 & 06-1196 (June 12, 2008) as an addendum to his recent legal writing tome with Bryan Garner, largely and frustratingly unavailable here in Austin.

This is because it illustrates how to write a scathing yet persuasive dissent that will likely be viewed by future Justices and Court observers in much the same jurisprudential light as Justice Jackson’s dissent from the majority opinion in Korematsu v. United States, 323 U.S. 214, 242 (1944) (Jackson, J. dissenting) is now seen, which famously rebuked the majority’s condoning of the internment of U.S. citizens of Japanese descent during WWII.

Justice Scalia’s dissent is masterful both in its tone and its construction. Part I lays out the policy fallout from the decision (i.e., the practical, real-world implications). Part II excoriates the majority’s attempt to brazenly recast the governing precedent, Johnson v. Eisentrager, 339 U.S. 763 (1950). Part III traces the juristic history of the writ of habeas corpus from its codification in 1679 Britain to the present day, and explains why the majority’s decision is such a stunning departure from the entirety of Western common law previously construing and defining the boundaries of the writ.

As far as the text itself, no paraphrasing can do it justice. Below are selected excerpts from the opinon.

The classic first sentence:

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war.

Boumediene, slip op. at 1 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.). And then, the meat of Part I:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

Id. at 2. Talk about “plain language,” you can’t get much plainer than that.

During the 1995 prosecution of Omar Abdel Rahman, federal prosecutors gave the namesof 200 unindicted co-conspirators to the “Blind Sheik’s” defense lawyers; that information was in the hands of Osama Bin Laden within two weeks. In another case, trial testimony revealed to the enemy that the United States had been monitoring their cellular network, whereupon they promptly stopped using it, enabling more of them to evade capture and continue their atrocities.

Id. at 4-5 (citations omitted). After recounting the bromide four of the five-Justice majority in Boumediene previously offered in Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006) (Breyer, J., concurring in part, joined by Kennedy, Souter, and Ginsburg, J.J.)—namely that “[n]othing prevents the President from returing to Congress to seek the authority [for trial by military commission] he believes necessary”—Justice Scalia curtly observes:

Turns out they were just kidding.

Boumediene, slip op. at 5 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisonersin this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Id. at 6. Ouch.

It is both irrational and arrogant to say that the answer [to the question of "whether the Constitution confers habeas jurisdiction on federal courtsto decide petitioners’ claims"] must be yes, because otherwise we would not be supreme.

Id. at 18. Calling out his colleagues for their juristic arrogance. And from the final paragraph:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization.

And the most sobering, bold, and blood-chilling line I think I may have ever read in a SCOTUS dissent, the last line cautions:

The Nation will live to regret what the Court has done today.

Let’s hope not.

* * * UPDATE * * *

For a fascinating examination of the Boumediene decision, see Professor John Yoo’s op-ed in this morning’s Wall Street Journal. This article is all the more interesting because Justice Scalia cites in his dissent to a memo Professor Yoo authored while at the Office of Legal Counsel that relied upon the then-accepted interpretation of Eisentrager. See Boumediene, slip op. at 3 (Scalia, J. dissenting, joined by Roberts, C.J., Thomas and Alito, J.J.).

* * * UPDATED UPDATE * * *

It is humorous to note that Justice Scalia “sics” the Justice he has publicly acknowledged as the best writer ever to sit on the Court, Justice Jackson, for the former Justice’s use of the phrase, “cited to [x case],” instead of “cited [x case] to [y court].” Id. at 9. So strong is Justice Scalia’s dislike for this phrasing that he has stated its use makes the author sound “illiterate.”

Thx to Justice Scalia for his incomparable wit and eloquence.

 

Thither Laura Ingraham

Yesterday, former Justice Thomas clerk and hopefully-not-former syndicated radio host Laura Ingraham posted the following message on her website giving some insight into why she has been suddenly absent from the airwaves for the past week and a half:

NOTE TO LAURA LISTENERS

Due to contractual obligations, for the present time I am unable to reveal why I am not currently hosting The Laura Ingraham Show. Rest assured, this absence is not of my choosing, nor is it health or family related. I am ready, willing and eager to continue the conversation we started seven years ago about politics and the culture. (Heck, if cancer couldn’t keep me off the airwaves for long, nothing will.) Keep checking the site for a schedule of my appearances on the Fox News Channel. All queries regarding my on-air status should be directed to Talk Radio Network’s management at 541 474 2297 or send an email. Thanks for sticking with me, and…Power to the People!

Just breaking this afternoon, Laura will make her second foray into hosting her own cable news show. She was one of MSNBC’s first hosts, headlining Watch It! which came on right after Imus. Beginning next week, she’ll host Just In during the 4pmCT timeslot on Fox.

Best of luck to her both with her new show and with her old one as well.

Thx to TV Newser

 

The answer every defense lawyer wishes they could file

Defense lawyers sometimes take a jaded views of some plaintiffs’ more outlandish claims of purported injury. On occasion, the defense bar may have even dreamed of filing an answer worded similarly to this one:

* * * NSFW * * *

This answer, it turns out, was never actually filed and was instead merely an inside joke that escaped into the blogosphere.

Thx to Above the Law

 

A federal order that would make the Southwest Conference proud

1963 UT Law graduate and U.S. Western District Judge James Nowlin issued a deposition scheduling order yesterday that is one of the best (if not the only) examples of football benchslappery I’ve ever seen.

Thx to Tex Parte Blog and Volokh

 

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

 

Like father, like son

Sixty-seven years ago today, Sam Houston’s only surviving son–Andrew Jackson Houston–was sworn in to the U.S. Senate at the ripe old age of 87 to fill the vacancy left by the death of U.S. Senator Morris Sheppard.

Andrew’s father was sworn in as one of Texas’s first two senators almost one hundred years earlier.

Incidentally, General Houston’s colleague in the Senate was none other than the Republic’s first Chief Justice to actually preside over a session of the Texas Supreme Court: Thomas Jefferson Rusk. While Chief Rusk was, technically, Texas’s third Chief Justice, the first two Chiefs never actually convened a Court session during their eventful tenures (Texas’s first Chief Justice, James Collinsworth, committed suicide by jumping from a ship in Galveston Bay while on the ballot as a Republic presidential candidate). See James W. Paulsen, A Short History of the Supreme Court of the Republic of Texas, 65 TEX. L. REV. 237, 248-53 (1986).

While the father served in the Senate for some thirteen years from February 21, 1846, until March 4, 1859; the son’e tenure was fated to be much shorter, lasting only twenty-four days until he died on June 26, 1941.

Thx to Texas on the Potomac

 

Finally, an insurance defense firm we can root for

Because we’ve covered how some counsel for 9/11-affected insurers pursued a sanctionable and despicable course of conduct in order to avoid paying claims arising from the horrific attacks, we’re pleased to bring you a story of one law firm that has manifestly done the right thing by both its insurer clients and the country.

The Philadelphia Inquirer has a fascinating couplet of articles chronicling Cozen O’Connor’s groundbreaking lawsuit against the Kingdom of Saudi Arabia for tort liability arising from the sovereign’s alleged complicity in–and even direct support of–the 9/11 attacks

Part one of the series documents some of the key assertions in the suit “missed not only by the 9/11 Commission but also by Congress in its investigations”, including:

Senior Saudi officials and members of the royal family or their representatives served as executives or board members of the suspect charities when they were financing al-Qaeda operations. Overall, the Saudi government substantially controlled and financed the charities, the lawsuit alleges.

The charities laundered millions of dollars, some from the Saudi government, into al-Qaeda and other terrorist groups and provided weapons, false travel and employment documents, and safe houses.

Regional offices of the charities employed, in senior positions, al-Qaeda operatives who helped coordinate support for terror cells.

Part two details how the suit—brought under the auspices of the 1976 Foreign Sovereign Immunities Act (FSIA)—alleges the “Saudi government and members of the royal family engaged in conduct that breached the standards of normal government activities when they supported Islamist charities that funded extremist groups.” By acting outside the statutory standards of conduct the suit contends, the Saudi government and royal defendants made themselves liable under the FSIA.

The Cozen plaintiffs are currently awaiting a Second Circuit decision that will decide whether the earlier dismissal of Saudi government and royals as defendants was proper. However, “[e]ven if Cozen loses the appeal and the Saudis retain immunity, U.S. District Judge Richard Conway Casey ruled that there is enough evidence to proceed against several Islamist charities, banks, and alleged terrorism financiers named in the lawsuit.”

Thx to How Appealing and the Philadelphia Inquirer

 

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

 

From $250 million to $0

Ever since I’ve been licensed, I’ve never understood the infatuation with garishly-large jury verdicts. Trial lawyers seem to bray about and tout them as a measure of the validity of the plaintiff’s claims, ignoring that such victories are illusory until confirmed upon appeal, where the arbiters are less easily swayed by factors unrelated to the law and merits of the case.

The only jury verdict I’ve ever considered worth bragging about is Joe Jamail’s $10.53 billion jury award ($7.53 billion in actual damages and $3 billion in punitive damages) on behalf of Pennzoil against Texaco, because it is the only one of such magnitude of which I am aware that was largely upheld on appeal (the trial court’s $3 billion punitive award was reduced to $1 billion). See Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 774, 866 (Tex. App.–Houst. [1st Dist.] 1987, writ ref’d n.r.e.).

Today, the sister court of the Houston appellate court that upheld the Pennzoil verdict smote down another large jury verdict initially touted as a huge win for the plaintiff.

In 2005, a Texas jury awarded a Vioxx plaintiff $24.5 million for mental anguish and economic losses and $229 million in punitive damages, in total, over a quarter-billion dollar verdict.

Whoopee.

Texas’s punitive damage caps automatically lowered the punitive award from $229 million to $26.1 million–quickly lopping off some $200 million of the jury’s award.

Well today, the Fourteenth Court of Appeals ended all the jubilation that may have existed over the once mighty jury verdict, reversing same and rendering judgment that the plaintiff take nothing on legal sufficiency grounds.

From a quarter billion to zero.

Thx to How Appealing, WSJ Law Blog, and the Texas Appellate Law Blog

 

Not sure how this will affect the school’s U.S. News & World Report ranking

Quick–two 2Ls recently won the World Hog Wrestling Championships down in Sabinal–which Texas law school do they attend?

(a) Texas Tech School of Law;
(b) Sul Ross College of Law (if it existed);
(c) Texas A&I College of Legal Learnin’ (both nonexistent and defunct); or
(d) Baylor Law School.

I guessed Texas Tech too, but I was flat wrong. The two hogtamers temporarily hail from no less than Waco, Texas.

The hog they bested was no doubt not as large as the one pictured above, but equally as impressive as law students are usually more known for acting like swine instead of wrasslin’ them. Congrats to both the victors.

Thx to Tex Parte Blog and Above the Law

 

Federal hearing cancelled because of high gas prices

Well, kind of.

U.S. Western District of Texas Judge Fred Biery cancelled this morning’s hearing in LULAC of Texas v. Texas, No. SA-08-CA-389-FB (W.D. Tex. 2008 ) (order cancelling hearing on Plaintiff’s Motion for Temporary Injunction), because:

the Court sees no reason for a hearing with testimony. Moreover, numerous gallons of $4.00 a gallon gasoline would be expended for a significant number of persons to appear with the result being an oral presentation of already written arguments.

Id. at 2.

Thx to Postcards From the Lege

 

1-C-E-R-T-I-O-R-A-R-I

SCOTUS superlawyer Tom Goldstein posted this hilarious sendup of the classic personal injury lawyer TV ad, only this time aimed at clients needing SCOTUS bar appellate counsel.

Thx to Tom Goldstein and AbovetheLaw

 

Do as I say, not as I do

If any of you are afflicted with the same degenerate compulsion as I am–the urge to blog–see this excellent/depressing post by Todd Smith at the Texas Appellate Law Blog for why you will likely be better served by NOT blogging anonymously (as I do).

Thx to the Texas Appellate Law Blog

 

PPP and RPL as accurate BigTex/MidTex metrics

A poster over at Greedy Texas got me thinking about what the best qualitative metric of a BigTex vs. a MidTex firm is. They posit that “no one gives a crap” about gross revenue, and that Profits Per Partner (PPP) and Revenue Per Lawyer (RPL) are all that really matter.

Having examined the gross revenues numbers previously lets compare the PPP and RPL of the firms that matter most to this discussion (i.e., the firms compared last time based on gross revenue alone, and a few others that are more than just single-city shops, or Texas outposts of national/regional firms)

I noted a few of these firms as tied when their PPP and RPL were inverted and similar. All in all, a fairly surprising ranking (i.e., Winstead being closer in PPP and RPL to Kelly Hart than to, say, Thompson Knight)

However, I still am of the mind that BigTex and MidTex are more accurately terms denoting scale, a measurement for which gross revenue would seem to be the most pertinent metric. So I’d still draw the BigTex/MidTex lines according to gross revenue, but look to the PPP and RPL metrics to determine how efficient a firm is, and how rewarded one might be for their toil.

So of the four BigTex firms confirmed by gross revenue (Akin Gump, Fulbright, V&E, and Baker Botts), it looks like all but Fulbright hold up their end of the bargain on PPP and RPL as well.

Thx to Greedy Texas and the Texas Lawyer

 

From clerk to Chief

The Green Bag (to which Texas’ own Bryan Garner is an adviser) is set to publish a fascinating article by St. John’s professor John Q. Barrett that reveals some endlessly interesting tidbits from the late Chief Justice Rehnquist’s time as a law clerk to Justice Robert Jackson–who was almost universally acclaimed by the current SCOTUS Justices as the best SCOTUS writer to ever put pen to paper.

Most interesting to me however, are the above photographs that the article reprints for the first time, which reveal a much more mischevious and humorous Rehnquist than his image belied in later years.

Also, it is intriguing to note, as Bryan Garner did, that the current Chief Justice traces a direct juristic lineage to Justice Jackson by virture of Chief Roberts having clerked for Chief Rehnquist, who in turn clerked for Justice Jackson.

Thx to Slate’s Convictions and Professor Barrett

 

First Cruz, now Clement

Like his Texas counterpart a few weeks ago, U.S. Solicitor General Paul Clement submitted his resignation today, effective June 2. Also like former Texas Solicitor General Cruz, General Clement is leaving on a high note.

Speaking of notes, the WSJ Law Blog reports that General Clement’s favorite band is Nirvana. “Smells Like [SCOTUS] Spirit” indeed.

The last similarity between these two Solicitors General is one they share with yet another former Texas SG (and Cruz’s predecessor), Greg Coleman. All three were were named to the American Lawyer’s Young Litigators Fab Fifty in early 2007, which listed the top 50 litigators under the age of 45 from around the country.

Thx to General Clement for his able service to our country and Above the Law, Bench Memos, and the WSJ Law Blog

 

Per curiam ponderings

Yesterday, I posted my own diatribe to counter the latest press release issued by Texas Watch, but noted at the end of my post that I was most concerned about the publication of the number of per curiam opinions issued per Justice by the Office of Court Administration (OCA).

Well, the OCA was kind enough to clarify for me the history of this practice which largely assuages my original concern–for whatever that’s worth.

The collection and publication of this per curiam data is hardly new, having been annually compiled for some twenty-seven years since OCA first began tracking the number of per curiam decisions issued by each Justice as early as 1981. Moreover, the OCA specifically sought input from SCOTX in both 2004 and 2006 regarding the contents of the OCA’s annual report, and the Court expressed no concern regarding publication of the per curiam statistics.

The OCA was also correct to point out that the identity of the opinions enumerated in the statistics is kept confidential, with only the number of opinions issued per chamber being made public.

So, at the end of the day, I am likely the only person to whom this one column of data jumped out as being slightly odd. Moreover, if neither the Court nor the OCA are troubled by the practice, than it is certainly beyond my purview to be.

Thx to the OCA for accurately, annually, and faithfully reporting the current statistical state of the Texas judiciary

 

Top BigLaw gross revenues in Texas

Following up on our post last week comparing the gross revenues of BigTex and MidTex (and BigLaw generally), see the Texas-generated gross revenues figures of the top BigLaw firms in Texas.

Jones Day $161.8 million
Weil, Gotshal, & Manges $140.4 million
Hunton & Williams $90 million
King and Spalding 82.2 million
Mayer Brown $64.2 million

Thx to Res Ipsa

 

Baylor and Texas Tech top the February bar results

Of the 1,072 folks who sat for the February 2008 Texas Bar Exam, some 762 people–or 71.08 percent–passed.

The breakdown by Texas law school was as follows:

Baylor Law School 95.83%
Texas Tech University School of Law 92.86%
Southern Methodist University Dedman School of Law 92.31%
South Texas College of Law 88.24%
St. Mary’s School of Law 86.96%
University Of Texas School of Law 80.00%
Texas Wesleyan School of Law 79.59%
University Of Houston Law Center 78.95%
Texas Southern University Thurgood Marshall School of Law 59.26%

Thx to Res Ipsa and Tex Parte Blog

 

Yet more ponderings on the art of persuading judges

Justice Scalia gave his best interview yet the other day with Brian Lamb on C-SPAN’s series, Q&A.

One of the most interesting segments was when Lamb showed Justice Scalia this clip from the Daily Show castigating his 60 Minutes appearance and his vote in Bush v. Gore, 531 U.S. 98 (2000), and then asked for his reaction.

“I watched [the Daily Show] once and that was enough.”

Justice Scalia elaborated further. First, he reminded John Stewart that President Bush was subsequently re-elected in 2004, so blaming his current occupancy of the office, the ongoing war in Iraq, or anything else derivatively-related in 2008 is specious. Second, he recounted how press studies conducted subsequent to the election found that Vice President Gore would have still lost even if he had never brought the election challenge that eventually resulted in Bush v. Gore, and the votes had been counted the way Gore sought. Third, and “penultimately,” Justice Scalia reiterated that the case only came before SCOTUS because Gore brought the suit, so it was he–not Bush or SCOTUS–who “wanted courts to decide the election.”

What was SCOTUS supposed to do when one of the parties (Bush) alleged the Florida Supreme Court had violated the federal constitution, “turn the case down for not being important enough … hardly.” Last, he also reiterated a point I have made as well that the vote finding the Florida Supreme Court violated the constitution was 7-2, not 5-4.

Justice Scalia also hinted at some future books he’d like to write, most exciting of which would be a sequel to his seminal tome, “A Matter of Interpretation: Federal Courts and the Law.”

The discussion ranged from what items are in his official SCOTUS portrait (a copy of–what else–The Federalist, and Webster’s Second International Dictionary (he doesn’t care for the Third edition)) to whether he still smokes a pipe (which he said was a very useful tool during his confirmation hearings to distract attention from what he was saying).

Thx to Convictions, WestBlog, and WSJ Law Blog

 

The new appellate landscape in Houston

The past few months or so have seen some truly momentous changes in the Texas appellate world, particularly as viewed from Houston.

In March, the respected appellate practice group at Mayer Brown splintered, with a portion leaving to head up the new appellate practice at Pillsbury, and another faction headlined by former SCOTUS clerks Brett Busby (Stevens, J.) and Jeff Oldham (Rehnquist, C.J.) moving to Bracewell Giuliani.

The latest addition to the Houston appellate scene is Morgan Lewis’ recent announcement that former Solicitor General Ted Cruz will be helping lead the firm’s effort to build the SCOTUS and national appellate practice from its Houston office.

Thx to SCOTX Blog and Tex Parte Blog

 

When a picture is worth 3,383 words

Today, Senator John McCain gave a 3,383 word speech expounding upon his judicial philosophy, but as Jonathan Martin keenly observed, this picture speaks louder than any soundbite in the Senator’s speech.

Thx to Jonathan Martin

 

And the award for funniest SCOTUS Justice during the October 2007 term goes to …

Justice Scalia by a mile, according to D.C. Dicta.

After reviewing oral argument transcripts from this past term, D.C. Dicta alloted the gallery chortles this way:

Justice Antonin Scalia: 74
Chief Justice John G. Roberts, Jr.: 23
Justice Stephen Breyer: 21
Justice David Souter: 17
Justice Anthony Kennedy: 9
Justice John Paul Stevens: 7
Justice Samuel Alito, Jr.: 4
Justice Ruth Bader Ginsburg: 4
Justice Clarence Thomas: 0

Of course, Justice Thomas‘ lowly rating is less a comment on his sense of humor as much as it is a function of his recalcitrance to make any comment during oral argument, funny or otherwise.

Thx to D.C. Dicta

 

More on how to make your case

Here are several more fascinating interviews with both Justice Scalia and Bryan Garner regarding their new book, Making Your Case: The Art of Persuading Judges.

The first three clips come courtesy of NPR’s own Nina Totenberg, whose interview Justice Scalia and Bryan Garner was featured in three parts on Morning Edition, Day to Day, and All Things Considered.

The second interview is with Bryan Garner alone, courtesty of Thomson Reuters’ blog.

Thx to How Appealing, Res Ipsa, Westblog, and NPR