February 2008

For those of you who have seen the excellent There Will Be Blood, you’ll enjoy this great SNL send-up of the penultimate scene above, where Daniel Plainview illustrates how the Rule of Capture works.

Thx to

I Spy

Take a look at this picture of Obama strolling down the Hike and Bike Trail and tell me he doesn’t have the look of a winner (and more than a passing resemblance to Bill Cosby from his I Spy days). I couldn’t agree less with any position he has, but whatever the “it” is that both Hillary and McCain so sorely lack, Obama’s got it in reserve.

Love the shot of the Secret Service agent behind him looking like he’s about to throttle anybody that looks troublesome.

Plus, on this trip down to Texas, Obama proved he’s an effortless and skilled politician in hanging out with the hometown football team and taking in some of the local sights. No surprise that the overly-packaged and instinct-less Hillary failed to do either, apparently electing instead to remain cloistered in a room somewhere endlessly preparing for the debate. Which, by the way, if you watched, was eerily reminiscent of the 1960 Kennedy-Nixon debate, where his best lines sounded natural and authoritative and her best lines (“change you can xerox”) sounded tired and contrived.

Thx to the Austinist

This topic is much too complicated for a simple blog entry, but just to give some perspective regarding the relative delay experienced by litigants in modern-day SCOTX as compared to what it has been historically, see below.


A recent Houston Chronicle story laments a maximum delay of 24 or more months (some 730 days). However, in 1913, the average pendency per case was approximately 1,800 days, which dropped to around 1,600 days in 1915, and had dropped further to around 900 days by 1933. In fact, the average pendency of a case at SCOTX from 1906 to 1953 was 738 days (some 8 days worse than the worst modern delay).

So before you get too righteous about the current delays at SCOTX, keep in mind it is much, much better than it has been historically.

Thx to Stayton & Eubank, A Study of Pendency in Texas Civil Litigation, 33 TEX. L. REV. 70, 81 (1954)

Too skinny to win the Heisman

Pretty cool deal for the players today in Austin, getting to pal around with the Democrat frontrunner.

Know who else has UT no. 1 Jersey?  43.

And this, in a nutshell, is why Barack is doing so well. Do any of us think that Hillary or John McCain would be hanging out with the hometown football team just a few hours before a make-or-break debate on national TV? I certainly don’t.

And that is why Barack is so formidable to Republicans (and Hlllary for that matter), because he has the innate ability to connect with all kinds of people and almost has that George W. Bush quality (sacrilege to compare the two I know) of being a guy you’d want to hang out with and maybe throw back a beer with.

BTW, am glad that Colt looks like he’s ready to pummel some Sooner hide.

Thx to BevoBeat

Officially a joke

Seeming to finally tire of nonsensical fiscal explanations offered up by TxDOT as to why it can no longer perform its statutory duties without the financial beacon of toll roads, Lieutenant Governor David Dewhurst and Speaker Tom Craddick sent this letter Tuesday to the State Auditor asking him to initiate “a comprehensive review” of TxDOT’s “questionable accounting procedures.” Among the irregularities were TxDOT’s projection of a $3.6 billion shortfall by 2015 without accounting for some $8 billion in already-approved road bonds, its claim of 60% increase in highway costs between 2002 and 2007, and its admission of $1 billion “error” in its budget forecasting.

Thx to Lt. Gov. Dewhurst, Speaker Craddick, and Texas Politics

Then, here are the best places to watch it in Austin.

Cloak Room

From personal experience, there is no better place to imbibe alcohol while simultaneously drinking in political theatre than at the Cloak Room, just off the Capitol grounds by the loading dock. For something a little more upscale (and bigger), my favorite politico bar is at the Stephen F. Austin hotel (the Intercontinental for those of you non-locals).

*** Places That Are Definitely Showing It ***

Sholz Garten
Official Barack Obama Watch Party
1607 San Jacinto Blvd
(512) 474-1958

Official Hillary Clinton Watch Party
1412 S. Congress Ave.
(512) 447-7688

The Side Bar
602 E Seventh St
(512) 322-0697
Yes, and Republicans welcome

Mother Egan’s Irish Pub
715 W Sixth St
(512) 478-7747

The Cloak Room
1300 Colorado St
(512) 472-9808
“Of course we will!”

Stephen F’s
701 Congress Ave
(512) 457-8800
Upstairs at the bar

The Tavern
912 W 12th St
(512) 320-8377

The Dog & Duck Pub
Corner of Guadalupe & 17th Street
406 West 17th Street
(512) 479-0598

Third Base Austin
1717 West 6th Street
Building 2, Suite 210R
(512) 476-2273

Texas Union Ballroom
Hosted by UT Democrats
Starts at 5:30pm – live music, free t-shirts, free food

*** Places That May Show It, But Call Ahead ***

The Brown Bar
201 W Eighth St
(512) 480-8330
“On and off throughout the night”

Tiniest Bar in Texas
817 W 5th St
(512) 902-6177
“Maybe”, but seemed lukewarm to the idea

407 E Seventh St
(512) 236-0008

Aussie’s Volleybar and Grill
306 Barton Springs Rd
(512) 480-0952
“We’ll put it on one of the TVs if you wanna come and see it, yeah”‘

Bout Time Bar
9601 N IH 35
(512) 832-5339

Opal Divine’s Penn Field
3601 S Congress Ave
(512) 707-0237

Doc’s Motorworks Bar & Grill
1123 S Congress Ave
(512) 892-5200

Joe’s Bar & Grill
506 West Ave
(512) 473-0885

Thx to the Austinist


Well, fellow Austinite David Holmes is a famed superdelegate (although he prefers the term, “automatic delegate”) who has pledged to vote for Hillary, but is now getting pressure to switch his vote to Obama.

David is maintaining a blog of his experience over at the New Republic, and it is fascinating with its blend of the surreal and mundane. Like going to grab a Krispy Kreme on your way into work and getting a call from former Indiana congressman and 9/11 Commission member Tim Roemer urging you to switch your vote to Obama.

Thx to an anonymous Texan source and David Holmes for enlightening us on the process


Not satisfied with merely dominating the gridiron, the four law reviews who edit the Bluebook have also decided to tackle cyberspace.

The Bluebook is now available online. Welcome to the citational future my friends.

Thx to Texas Appellate Law Blog, Legal Writing Prof Blog, and the folks at the Bluebook


In addition to the awkwardly-decorated trailer left parked in back of Hillary’s Austin campaign headquarters, this sign was up to greet Bill as he drove to downtown via West Fifth Street.

Thx as always to El Arroyo (“the ditch” for all you gringos) for fine signage, as well as the Austinist

State senator and former Fifth Circuit clerk and TYLA president Kirk Watson (D) was interviewed last night on Hardball regarding his support of Barack Obama. Show host and former Jimmy Carter and Speaker Tip O’Neill aide Chris Matthews disassembled Watson by forcing him to name just one legislative accomplishment of Obama’s, to which Watson was left speechless.

Not Senator Watson’s finest moment, but it appears that the “thrill” Matthews has felt “up his leg” at the prospect of an Obama presidency may be, er, waning.

*** UPDATE ***

Today (by way of Texas Politics), Sen. Watson issued a statement explaining his less than loquacious performance on Hardball, stating “my mind went blank.” Thanks for the newsflash Senator.


Above the Law has bestowed the good senator with “Lawyer of the Day” honors.


Thx to Newsbusters, HotAir, and the Huffington Post

Credit WSJ SCOTUS correspondent Jess Bravin with the priceless quote above. One of the many small-claims court spinoffs is a show called “Judge Alex.” Well, as is the case with many of these made-for-tv court shows, the “judges” presiding over the parties are actually acting as arbitrators. Hence, the trappings of a courtroom without all the pesky rules of evidence, procedure, or decency for that matter.

Hon. Alex

Well, the “Honorable” Alex Ferrer (aka “Judge Alex”) ran afoul of his former manager for alleged failure to pay the manager the commissions purportedly owed him under the management contract. It seems that Judge Alex, who pays the bills by arbitrating disputes, has asserted that he doesn’t have to abide by the arbitration clause in his own contract with his former manager.

On Monday, SCOTUS heard oral argument in Preston v. Ferrer, cause no. 06-1463, to decide whether an arbitration clause in a contract can be enforced when a state agency arguably has exclusive jurisdiction over the matter that the parties originally intended to send to informal adjudication.

When asked whether he–a judge who most definitely allows cameras in his own courtroom–thought SCOTUS should allow cameras in its courtroom, Judge Alex responded, “I think they should,” because “[t]he arguments can be fascinating for lawyers or people who are students of the law, but for average people, they’d rather watch paint dry.

I can only hope and assume Judge Alex wasn’t referring to himself as a “student of the law,” as small-claims court (or, even worse, fake small-claims court as the case is here) is the jurisprudential equivalent of kindargarten.

*** UPDATE ***

In stark to contrast to our beloved SCOTX, SCOTUS just showed how judicial efficiency is done by issuing its opinion in Preston v. Ferrer just a scant month after it heard oral argument. Therein, the “Court ruled 8-1 against [the cheesy TV judge], holding that an arbitrator must decide the dispute.”

Thx to the WSJ Law Blog

[my apologies on the NSFW picture below, but it was too perfect to pass up]

Honeysuckle this

So says my favorite Texan singer/songwriter, Willie Nelson, in a recent interview with conspiracy-minded talk show host Alex Jones in response to an effort last Session by former Sen. Barrientos to name a toll road after Willie. The interview with Jones regrettably also touches upon the ridiculous and despicable 9/11 truther nonsense, into which Willie has apparently now bought.

Nonetheless, no matter how much dope Willie smokes or what crackpot theories he endorses, Willie will always be the man in my mind, and I couldn’t agree more with him on his disdain for the questionably-legal adventure in toll road construction to which Central Texas is currently being subjected.

Thx to Willie and (can’t believe I’m saying this) Alex Jones

So says Will Ferrell in listing the top eight catchphrases randomly yelled at him on any given day. The full list is:

1. “Mom, more meatloaf!”
2. “You’re my boy, Blue!”
3. “Let’s go streaking!”
4. “I want to be on you.”
5. “I’m kind of a big deal.”
6. “Milk was a bad choice.”
7. “Stay Classy.”

Ferrell was in Austin this past Saturday to attend a special screening of his new flick, Semi-Pro, at the Alamo Drafthouse (hands down, the best movie theatre in the country BTW), at which the entire audience had to dress in 70s era “Flint Tropics” gear in order to attend.

photo by David Hill Photography

For Jackie Moon‘s favorite beer, see below.

Thx to the Austinist and David Hill Photography


Responding to postings at Above the Law and elsewhere, firm chair Jerry Clements confirmed today there is only one compensation structure for all Locke Lord associates.

Clements further clarified that the memo to “LLS Legacy Associates” went out only to former Locke Liddell associates because they were accustomed to receiving compensation memos in February. Moreover, she explained that the memo sent to former Lord Bissell associates in December (again in conformance with prior practice) did not contain the more extensive discussion of the firm’s new deferred compensation structure that was included in the February Locke Liddell memo because “we had not decided on it yet.”

Thx to Tex Parte Blog

The parent company of Westlaw, Thomson Corp., has just bought a 51% stake (at a reported cost of $17.2 billiion) in Reuters, which heretofore only allowed any one individual owner to hold no more than a 15% ownership interest.


Be on the lookout for Lexis’s pending acquisition of the AP.

*** UPDATE ***

EU antitrust regulators have approved the acquisition of Reuters, provided that Thomson Corp. sells off its financial databases. Will this limitation on the databases Westlaw can potentially provide be a boon to Lexis afficionados?

Thx to, well naturally, Reuters

Guess what VY is doing this offseason? Vacationing in exotic locales, throwing his rookie millions away on some expensive frivolities? Nope.

His Vinceness

He’s enrolled at UT for the spring semester working towards getting his degree as he promised he would when he left early for the NFL.

Kudos to Vince for keeping his word to the UT community (and to his mom by the way).

*** UPDATE ***

Video of the local media’s interview with Vince.

Thx to the Statesman

For the all-important upcoming Texas Democrat primary, Hillary Clinton has set up her campaign headquarters in the same building off of Ben White Boulevard where one-time Texas gubernatorial candidate Kinky Friedman once ran his failed attempt at becoming a respectable citizen.

Of all the parking lots

Well, the only problem is that Kinky’s pink campaign trailer is still parked out back, and well, you can see how the trailer’s exterior design elements might be an unwelcome sight anywhere near the vicinity of Mrs. Clinton.

Thx to John Kelso at the Statesman

Father Knows Less

Sunday’s edition of the Sydney Morning Herald ran an excerpt from Wendell Jamieson’s book, Father Knows Less, for which Mr. Jamieson sent everyday questions from kids around the world to various experts in an effort to get the answers.

For example, Jeff Zucker answers a question about how much TV will turn someone’s brains to mush, and a professor of archeological sciences opines that a 9 year-old questioner can’t cook his sister because the youngster would find the experience “existentially upsetting.”

Well, the Senior Justice of SCOTX was also contacted and asked to answer “[w]hy do grown-ups get to do what they want?” by five year-old Marley-Rose Libburd of Brooklyn, New York. Justice Hecht replied:

It only seems that way to young people because adults make all the rules. Actually the law applies more strictly to adults than minors. All states and most countries set an age, usually between 18 and 21, below which a person gets special treatment. Minors can’t be held to their contracts and are sometimes excused for injuring others. Minors who commit crimes are usually treated as delinquents and punished less severely than adults. The reason is that minors do not have the breadth of life experiences to appreciate the consequences of their choices. Adults do not have the same excuse. They can’t do whatever they want but must follow the law or pay the penalty.

Thx to SCOTX Blog

The front line

Even though Associate Justice Bill Vance announced back in October he would not seek a fourth term on the Waco Court of Appeals, the remains of the jurisprudential feud between he and Chief Justice Tom Gray continue to reverberate in appellate circles.

Just today, the Texas Supreme Court granted the City of Waco’s petition for review filed in City of Waco v. Kelley, in which Chief Gray began his dissent from the majority in the opinion below by paraphrasing the majority’s opinion this way:

Dear City of Waco,

Congratulations, you have prevailed on your legal argument that the hearing examiner’s judgment reducing Kelley’s indefinite suspension to only 180 days and demoting him to sergeant was not authorized. Because you prevailed, he is not demoted and you have to take him back as a commander. You were victorious in this battle, so you lost the war.


A majority of the Justices on the
Tenth Court of Appeals

Chief Gray concluded his dissent with this follow-up letter to the City of Waco:

Dear City of Waco,

Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again. The Tenth Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas. I have done what I could, by writing lots of dissenting opinions, but it has not really helped the situation any. Good luck on your trip to Austin.


The dissenting Chief Justice

Thx to SCOTX Blog

II Am Beatch

For your Tuesday Friday reading enjoyment, the Texas et al. Heller amicus brief filed by the Great State of Texas and some thirty (30) other states in the landmark II Am. case, District of Columbia v. Heller, currently set for oral argument on March 18, 2008 at SCOTUS.

We here at SMSB have followed this case with great interest ever since it was first given eloquent life by J. Silberman in an opinion then-styled as Parker v. District of Columbia.

For a good analysis of the merits of the Texas et al. position, see David Kopel‘s exposition over at Volokh and Professor Mike O’Shea‘s write-up at Concurring Opinions.

Thx to an anonymous Texas tipster and the thirty-one attorneys general advocating for an individual right to bear arms

Next Page »