October 2014

* Who even thought for a second that selling this drink to kids would be ok? “According to the label, each 8.4-fluid ounce can contains 280 milligrams of caffeine… but no cocaine.” [MSNBC]
* Having Shaq involved in any warrant execution automatically violates, like, four amendments at least. [Associated Press]
* Charter schools are a go in Ohio. [Dispatch]
* Some state ballots this month will include a measure to allow the recall of judges “for any reason,” and a proposal actually named “JAIL 4 Judges” — among other slights of the judiciary. [Newsweek]
(More on judicial politics at the New York Times (subscription archive), Ohio State Law Journal, and Common Dreams. Remember phrases like “judicial murder” and “nuclear option” from last year?)
* In memory of Pat Tillman, Army Ranger and Arizona Cardinals safety, his brother Kevin has written a thought-provoking piece on war. [truthdig; New York Times]

alex acosta r alex acosta r alexander acosta.jpgWell, we’re not sure about that part — nor can we confirm or deny whether the justice was sighted in a “banana hammock.”
But we can report that Justice Alito was recently in MIami, where he swore in Alex Acosta (at right), one of his former clerks, as U.S. Attorney for the Southern District of Florida. From the Miami Herald:

Samuel A. Alito, the U.S. Supreme Court’s newest justice, praised one of his protégés, R. Alexander Acosta, on Wednesday as he swore him in as the U.S. attorney for the Southern District of Florida.

But Alito said that for all his formidable legal talent, Acosta betrayed one ”weakness” when he served as a law clerk in 1994 for the then-federal appellate judge.

”Alex’s knowledge of sports was a little bit lacking,” Alito deadpanned before a standing-room-only gathering of judges, prosecutors and defense lawyers in the historic central courtroom of the Miami federal courthouse.

Alito, a self-professed baseball fan, joked that Acosta probably didn’t know the difference between the Florida Marlins and the Miami Dolphins.

Even if his sports knowledge may be deficient, Acosta is a young superstar of conservative legal circles (as well as “pretty cute,” too). At the tender age of 37, he was nominated by President Bush as Miami’s U.S. Attorney — a position he was already occupying in an acting capacity.
Prior to returning to Miami, where he has deep roots in the city’s Cuban-American community, the brilliant Acosta served as head of the DOJ’s Civil Rights Division. His roughly two-year tenure as Assistant Attorney General was rumored to be somewhat rocky. Acosta’s fairly conservative civil rights agenda apparently did not sit well with some of the more liberal lawyers in the division, who had a different vision of what they’d be doing when they signed up for civil rights work at the Justice Department.
(If you can enlighten us further on these matters, please drop us a line.)
Alito protégé sworn in as U.S. attorney in Miami [Miami Herald via How Appealing]

* Gay marriages legally-cognizable-relationships-that-will-probably-get-called-civil-unions are coming to New Jersey.
ted olson lady booth.JPG* Superstar lawyer Ted Olson, who is not gay, got married — to a lovely lady named Lady. And ATL has the exclusive photos to prove it.
* Law firms are tying the knot too. The latest to head for the altar: Dewey Ballantine and Orrick.
* Things are going less smoothly for celebrities. Country music star Sara Evans is getting divorced. Jane Pauley is filing suit. Naomi Campbell is getting arrested. And Foxy Brown is getting sentenced.
* Paralegal pay ain’t half bad, as long as you work for Biglaw — and put in lots of overtime.
* Think grammar and punctuation are silly and useless? Listen to the cautionary tale of the costly comma.
* Justice Scalia: You like him, you really like him!
* As for your Least Favorite Supreme Court Justice, we’ll keep the polls open over the weekend. To vote, click here.
* And if you’d like to cast a ballot in a more frivolous poll, help Judge Janice Rogers Brown pick a hairstyle. To vote, click here.

abstract art contemporary art.jpg* Look at us, we’re patrons in training! Our law firms are getting funky with their art. But let’s hope they draw the line at installation art. [New York Observer]
* If you want something dirty, keep up with the Heather Mills / Paul McCartney divorce. The divorce papers were leaked, and everybody’s getting sued. [Daily Telegraph]
(Because, honestly, who the f&*k is Sara Evans, and does she have only one leg?)
* If you want something really dirty, both literally and figuratively, read about the prosecutor who allegedly had sex with a paralegal — in a stadium bathroom stall. [Seattle Times]
* I wonder what happens to puppy killers in jail? [Washington Times]
* I think Elmo has always been on something. Or maybe it’s just an overactive thyroid. [KVBC]

clarence thomas justice clarence thomas.jpgFor a while there, Justice Clarence Thomas was in the lead in our Least Favorite Supreme Court Justice poll. But then Instapundit linked to the poll, and Justice Ruth Bader Ginsburg zoomed ahead. We’ll leave that poll open for a while, since we’re still getting incoming links and votes for it.
As for Justice Thomas, currently running third in the poll, he recently did something that he does about twice a Term at the Supreme Court: he spoke.
Earlier this week, down in Atlanta, Justice Thomas delivered a speech and took questions at a continuing legal education seminar on appellate practice. Accounts of his rather interesting remarks are available here and here. He touched on many topics, including amicus briefs, judicial independence, and cameras in the courtroom.
Now, we like CT — we really do. We admire him as a jurist, and we also hear that he’s a very affable man. But the excerpt below struck us as poor word choice for someone whose SCOTUS nomination was almost derailed by sexual harassment charges.
Here’s Justice Thomas, explaining why judges should be less aggressive when questioning lawyers at oral argument:

“It seems fashionable now for judges to be more aggressive in oral arguments. I find it unnecessary and distracting… My job is not to rape your argument, not to make your argument, not to hurt your feelings.”

“Nor is my job to ask whether your argument placed a pubic hair in my Coke.”
Update: We weren’t there, obviously, and we don’t have a recording of the proceedings. But according to this reader comment, Justice Thomas said “raid,” not “rape” — which would make more sense. (Serves us right for relying upon the MSM.)
Justice Thomas Opens Up on ‘Aggressive’ Appellate Judges [Fulton County Daily Report]
Justice Thomas Speaks! [WSJ Law Blog]

breasts cleavage angelina jolie jennifer aniston topless nude breasts.jpgLook, if you’re going to be an exhibitionist, you need to OWN THAT S**T. No regrets; no looking back. And absolutely no lawsuits:

Once again, second thoughts prove unavailing after modesty is cast to the winds:

“A magazine that published a photograph of a woman baring her breasts at a pig roast for motorcycle enthusiasts did not intrude on her privacy, a federal judge has ruled. Tonya Barnhart sued Paisano Publications LLC, publisher of Easyriders magazine, after it ran the picture of her in its March 2005 issue, claiming unreasonable intrusion, false light invasion of privacy and appropriation of her likeness.”

But U.S. District Judge J. Frederick Motz of Maryland* ruled against Barnhart on summary judgment. Her behavior “cannot reasonably be said to have constituted a private act,” Motz wrote. “She exposed herself at an outdoor fundraising event open to any members of the public who purchased a ticket.”

Yes, “Tonya” with an “o.” Are you honestly surprised?
Judge Motz rejected Barnhart’s other claims as well:

Her claim that the image presented her in a false light also failed because she never claimed that the picture distorted “her true appearance,” but only that it created the impression she was the sort of person who would consent to posing topless for a magazine, Motz ruled.

Finally, Motz held that Barnhart’s claim for appropriation of her likeness failed because her image has no commercial value.**

No commercial value? That’s way harsh, Tai. Guess they’re real, but not so spectacular.**
* Judge Motz, by the way, is married to Fourth Circuit Judge Diana Motz. Overheard at the Motz house: “Honey, please take out the trash. Don’t make me mandamus you.”
** Yeah, we know: “Maryland courts have held that someone whose picture is taken in a public place at a newsworthy event does not have an appropriation claim.”
So Judge Motz’s ruling does not reflect in any way upon the size or quality of Barnhart’s breasts. And there was no in camera examination of the plaintiff.
Another flasher’s-remorse case loses [Overlawyered]
Judge: Photo of woman baring her breasts didn’t violate privacy [Associated Press

salad bar.jpgDelightful links, hand-picked with loving care by Stella Q, will appear later today. For now, here a few other quick links that caught our eye recently:
* Curious about how many Americans share your full name? Now you can find out. [TaxProf Blog]
* “Zagat’s for prisons.” Good stuff. [WSJ Law Blog]
* Professor Dimino wants to know: What’s the most frivolous lawsuit or argument you’ve encountered? (A regular diet of them is served up over here; but we’re sure that countless examples remain undiscovered.) [PrawfsBlawg]
* “Dukakis would have picked up at least 3 states if it had come out that he’d partied with Playboy bunnies.” [Instapundit]
* Wiccans don’t have standing? Give them some eye of newt and wing of bat, and they’ll conjure some up in a jiffy. [Associated Press via How Appealing]
* Camille Paglia: Love her or loathe her, she’s always interesting and fun to read. Especially when writing about the Mark Foley scandal. [Althouse]
* Fun with Enron emails: “Certainly all of you can stop shredding documents for 5 minutes to respond.” [Enron Explorer via WSJ Law Blog]
* Think Jeff Skilling got too harsh a sentence? You’re not alone. [DealBreaker]

jane pauley.jpgTelevision broadcaster Jane Pauley is suing the New York Times. Pauley v. New York Times may not go down in history like New York Times v. Sullivan; but it’s still a case worth noting. The Wall Street Journal reports:

Former “Today” show co-host Jane Pauley sued New York Times Co., alleging the publisher helped deceive her into participating in an advertising supplement for drug companies published in the Times.

Also named in the suit is DeWitt Publishing, a company that prepared articles for the supplement. The lawsuit alleges Ms. Pauley was “tricked” into being interviewed for the supplement, which promoted makers of psychotherapeutic drugs, by a DeWitt employee who represented herself as a reporter for the New York Times.

So Pauley’s claim is that she was unwittingly turned into a shill for Big Pharma. Because when celebrities sell out to corporate interests, they prefer to do so consciously.
The Times’s defense:

“Ms. Pauley’s assistant was told that the article for which Ms. Pauley was to be interviewed would appear in a special advertising supplement and Ms. Pauley agreed to participate.”

They told your assistant? Bad news, Jane. In the entertainment industry, if that’s not constructive notice, we don’t know what is.
(You can access Pauley’s complaint by clicking here. The case has been assigned to Judge Gerard Lynch, a brilliant S.D.N.Y. jurist and former full-time law prof at Columbia — and a proud graduate of our high school.)
TV’s Pauley Sues New York Times [Wall Street Journal via WSJ Law Blog]
Jane Pauley Sues New York Times [The Smoking Gun]

indian woman from india.jpgNot sure how we feel about this development:

For years, outsourcing has been a dirty word inside the world of white-shoe law firms…. A number of large law firms, though, are starting to tiptoe onto far-flung shores.

The latest is Clifford Chance, one of the largest law firms in the world with 29 offices in 20 countries, which will announce plans today to consolidate and move big chunks of its administrative functions like accounting and technological support to an operation in Delhi, India, by next spring.

Ah yes, Clifford Chance — already renowned for its spectacular associate morale.
We’re sure CC associates will love it when their computer freezes up at 2 a.m. the night before a closing, they call the dubiously-named “Help Desk,” and they spend 45 minutes trying to explain the problem to an Indian woman who insists that yes, she really IS named “Rhonda.”
On the other hand, outsourcing all boring tasks could be good for law firm associates over the long term. Can Bangladeshis be trained to conduct due diligence?
Law Firms Are Starting to Adopt Outsourcing [New York Times via How Appealing]
Outsourcing: Everybody’s Doing It, Even Law Firms [WSJ Law Blog]
Clifford Chance LLP: Associates’ Concerns [Internal Memos]

janice rogers brown two hairstyles.JPGOn Fridays, we administer random reader polls here at Above the Law. Last week, for example, we asked you to vote for your Favorite Supreme Court Justice.
(That poll is now closed — and Justice Scalia won, in case you’re wondering. But we’re still taking votes in our poll for LEAST Favorite Supreme Court Justice.)
Today’s poll is a little less weighty. It relates to Judge Janice Rogers Brown, who currently sits on the super-prestigious D.C. Circuit (from whence many Supreme Court justices have come).
Judge Brown, a former justice of the California Supreme Court, is a smart, outspoken judicial conservative — a judicial diva, if you will. She also happens to be an African-American woman. Not surprisingly, JRB is frequently mentioned as a possible Supreme Court nominee in a Republican administration.
Enough background. For your reference, the top right photo is “Bangs Janice,” and the bottom right photo is “Perm Janice.” Here’s the poll:

Which hairstyle is better for Judge Janice Rogers Brown of the D.C. Circuit?
Bangs Janice
Perm Janice
Free polls from Pollhost.com

We look forward to the results. Thanks for voting!
A Preemptive Rebuttal to the P.C. Police: We do NOT need your lectures on the long and complex history of African-American women and their hairstyles. We are NOT making any grand statement on issues of self-image and self-representation, the highly charged intersection of racism and feminism, or any other weighty subject.
This poll is nothing more than the federal judicial version of the “which look is better” polls that appear in celebrity mags like US Weekly and In Touch. We just want to find out which JRB hairstyle our readers prefer. (We have an opinion, but we’ll keep it to ourselves for now.)
In future polls, we will ask ATL readers about the hair and fashion choices of lawyers and judges from every conceivable demographic group. So don’t read anything into this poll. We’re starting with Janice Rogers Brown because, well, we think she’s magnificent. And we want her to have the full benefit of these poll results as she styles herself for future public appearances.

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