May 2008


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


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

Fishbowl D.C. has been dutifully covering the buyout offers extended to longtime Washington Post employees as the paper struggles to remain competitive in the internet age.

Part of the Post‘s strategy has been to offer buyout packages to its full-time employees so that the paper can convert them into contract employees who require less financial overhead. The buyouts of the more lucrative news personalities will not result in any real change in their job functions at the Post, but will instead serve to alleviate the remunerable concerns of the paper.

Well, just this month, one of the men who put the Washington Post on the map and who happens to be Assistant Managing Editor accepted the paper’s buyout offer: Bob Woodward.

Even though the buyout may be a mere formality with no real effect, it still seems like the end of an era when the financial times force the Post to break with it’s longtime resident legend.

Thx to FishBowl DC

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.

Laid bare

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

Appellate nirvana

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.


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


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

The best

Proposals are now under consideration by the Austin City Council regarding how to redevelop the City’s Seaholm water treatment plant–due to be decommissioned and moved in 2009.

Of the several proposals submitted, my favorite (and that of the Austinist as well) is the proposal put forth by Stratus Properties, which would feature an HEB as part of the mixed-use development.

The Whole Foods headquarters is great, but I’ve found that my family uses it more for a fun downtown eatery or for the ice-skating at Christmas than for actual grocery shopping. Now, an HEB on the other hand, would be a great place to pick up some groceries on the way home from work to save my wife the trouble.

Thx to the Austinist

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.

Pig Soooooey

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


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


The National Portrait Gallery is our nation’s repository for its most famous portraits of its most revered citizens … and Stephen Colbert.

As the Capitol Crowd recounts, Colbert’s portrait arrived at its place of honor after:

Colbert trie[d] to convince the Smithsonian that he should be considered a national treasure. He attempt[ed] to donate his portrait to the Smithsonian’s National Museum of American History, but the museum’s director suggest[ed] that perhaps Colbert should speak to the National Portrait Gallery.

By the way, the hallowed location at which Colbert’s portrait sits is between the public restrooms. However, his painted likeness has apparently doubled visitation at the National Portrait Gallery.

Et tu Colbert?

The only thing that could have possibly made his portrait even better is if he was painted while wearing his American armor, courtesy of an Austin artisan.

Thx to Capitol Crowd

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


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 and the National Law Journal


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

Damn shame

The big hail storm that hit Austin two days ago will leave at least one lasting scar on one Texas’ most treasured sites. The 22 wooded acress surrounding the Capitol has long been a favorite of my family as a great picknicking site on a lazy Sunday afternoon.

No more

Sadly, seven to eight oak trees on the Capitol grounds, estimated to be between 75 to 100 years old, bore the brunt of the swirling winds this past Wednesday night and were uprooted in the storm. The State Preservation Board estimates that some fifteen more trees have major damage, some of which may also have to be removed. See video of the damage here.

Apparently, some of the burled trunks will be saved to make gavels.

* * * UPDATE * * *

More video of the Capitol grounds damage here.


Thx to Texas on the Potomac, KEYE, Austinist, and the Statesman

The Godfather

The founder and longtime publisher of Texas Monthly, Michael Levy, has announced that, after 35 years, he is retiring from the indispensable magazine he founded back in 1973.

An edited version of his farewell email is below:

My last day as publisher of TEXAS MONTHLY will be August 31. (I know it’s a Sunday, but for everybody associated with TEXAS MONTHLY over the years it’s always practically been 24/7/365.)

To paraphrase my friend George Pratt–who rose through the ranks at Southwest Airlines from working on the ramp and sweating in 737 baggage holds to ultimately becoming a key executive responsible for operating various regions of the country–to walk away from a labor of love is not an easy task.

At last week’s TEXAS MONTHLY Talks taping with Evan Smith, Lyle Lovett said, “Anybody who gets to do on a daily basis what he likes to do is very lucky.”

It started in 1973 with an idea, the premise still true today: Texas is a huge expanse of geography, but in essence it’s really a defined community of interest… And from our first issue in February 1973 to the newest one on the newsstands, I have always believed that our success has been due first, foremost and primarily to the magazine’s publisher always having surrounded himself with colleagues far smarter and more capable than he.

But it worked! Beyond anything I had dreamed possible.

So why now to say adiós?

Simply put, the 35th anniversary of TEXAS MONTHLY in February prompted me to make a very personal and difficult decision. With the encouragement and support of my mother, my three daughters, Rachel, Tobin and Mara, and my sister Jean, after 424 issues I’m ready to turn the torch over to those who are here, and those who will follow, because I trust them to make the magazine I started even better. The time and opportunity have come to allow me to begin a new chapter in my life…

This is proving to be much harder for me than starting TEXAS MONTHLY 35 years ago.

The most difficult part of all for me will be not being with the wonderful people here, the humanity of TEXAS MONTHLY. I guess I will never really “leave”. I just won’t be here.

We have not only made a difference in Texas, a state we all love, with our journalism and with our support for the voluntary action movement, we created a community, an extended family…

Happy trails to you all, and thanks for a great 35 years.



Thx to Michael Levy for giving our State an outstanding journalistic legacy and Texas Politics

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:

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

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

What a lineage

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

I wouldn't want to stand in front of either of these men

The two best running backs in UT history, and two of the best that ever took a handoff for that matter, played together at a golf tournament earlier this week.

Ricky reflected on his uneven professional career and revealed that Dolphins Executive Vice President of Football Operations Bill Parcells went out of his way to retain Ricky, much to the UT legend’s surprise.

Meanwhile, Earl had some sage advice for another great UT running back, Cedric Benson, and his recent boating adventures on Lake Travis (of note, Ricky revealed Cedric had invited him to join the merry mariners that Saturday, but Ricky declined):

I think at some point you have to stand up and take responsibility and realize that you not only represent Cedric Benson and the Chicago Bears and your family. It’s bigger than that …. You represent the university family. You as a man should have some pride in what you do …. Right now, everybody remembers Cedric Benson by what happened up on the lake. Nobody remembers what a great football player he is …. You’ve kind of got to start thinking, and you’ve kind of got to do it before you get 52 years old, you know?

Pretty sage advice from Earl. He more than anyone knows that when it’s all over with, former UT players are often more embraced and honored here in Texas for their contributions to the Longhorns than by the NFL fans of the teams for which they later played.

This reunion of UT greats reminded me of an interview the two did together about a decade ago, when UT was still routinely getting shellacked by nationally prominent opponents.

Now’s a good time to remember two of my favorite Earl runs, the first is from his UT days, and the second comes at about 1:13 from his legendary Oiler career. I don’t know if I’ve seen another running back who, from a standstill, could take one stutter-step and then knock an NFL defensive lineman on his backside.

Thx to Earl, Ricky, and the Statesman


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

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