Thursday, May 8th, 2008


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

Thx to Shenanigans


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 See David M. Gunn, “Unpublished Opinions Shall Not Be Cited as Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 ST.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

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


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

The Man

We related some of the anectdotes contained in a new tome about the life and times of former Lieutenant Governor and Comptroller Bob Bullock , entitled, “Bob Bullock: God Bless Texas.”

Well the book, and particularly the conduct of the authors, has not sat well with Bullock’s widow and many of his closest friends and colleagues.

Brutus and Judas?

The bad blood apparently goes back to a 1994 column by book co-author Dave McNeely (on the left above) that ran two days after Bullock had heart bypass surgery, which speculated who would be lieutenant governor if Bullock died.

Very subtle Dave, can’t imagine why Jan Bullock would have taken offense at that.

Several Bullock aides also questioned the inclusion of incidents that occurred before Bullock sought treatment for alcoholism in the 1980s.

Book co-author Jim Henderson (on the right above), offered this less-than-tasteful response to the negative reaction to the book by Bullock loyalists and widow Jan Bullock:

Jan wanted to write her own book about Bullock. Didn’t happen. Get over it. Then she did her best to obstruct the writing of this book. Didn’t happen. Get over it. Then she did her best to block publication. Didn’t happen. Get over it. She apparently wanted to control everything written about her late husband. Didn’t happen. Ain’t gonna happen. Get over it.

Mcneely may have revealed the authors’ true motivation in including more of the salacious (and disputed) details of Mr. Bullock’s life, when he admitted to the Statesman that “he hopes the book fuels a TV pilot.”

I bet he does.

Thx to Postcards from the Lege, the Statesman, and Texas Politics


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

El Jefe

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

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