August 2014

thoughtful man.gifAnn Althouse raises a potential quibble with the above quip, made by Justice Antonin Scalia in a public appearance this past weekend. She writes:

It would be better to say “not everything that is stupid is unconstitutional.” “Everything that is stupid is not unconstitutional” can be read to mean that every stupid thing is constitutional, when plenty of stupid things are unconstitutional. I know there’s some argument over whether this should actually be considered a usage error. The argument that it’s not usually brings up Shakespeare’s “All that glisters is not gold.” Why didn’t he write “Not all that glisters is gold”?

Howard Bashman criticizes Professor Althouse for engaging in “untoward nitpicking on the internet.” But it seems to us that Althouse, after raising this possible ambiguity, ultimately comes down on the same side as Bashman:

[F]orget about this particular language nicety, I’d say. I’m rather glad to myself, since I was personally needled for years by someone who was inordinately vigilant on this usage point.

To support her position that this is much ado about nothing, Althouse cites Fowler. And as we’ve pointed out in these pages, Justice Scalia is a devout follower of Fowler.
We say: Everything is illuminated that is not unilluminated. Including the dispute over this issue of usage.
“It so happens that everything that is stupid is not unconstitutional.” [Althouse]
Does “Everything that is stupid is not unconstitutional” equal “Every stupid thing is constitutional”? [How Appealing]
Earlier: The Eyes of the Law: A Legitimate Use of “Scalito”
The “S” Clash: Scalia’s Position Explained
Read This Only If You’re a Grammar Nerd

100 dollar bill Above the Law Above the Law law firm salary legal blog legal tabloid Above the Law.JPGParalegals, we’re still looking for your income information; please help. Details here.
While we’re on the subject of money, check out this article, by Gina Passarella for the Legal Intelligencer, concerning law firm finances. It’s quite enlightening.
If you think of a big law firm as doing nothing but spinning off mountains of cash to its partners, think again. Cash flow can be a two-way street. Many firms require their partners to make hefty capital contributions during the time that they’re partners, to finance firm operations and growth:

[A]n equity partner at a large firm is typically expected to place between $400,000 and $1 million in capital contributions with the firm over the lifetime of his partnership. The firm then withholds, for example, 5 percent of each paycheck until the partner reaches the required amount. At that point, the partner has fulfilled her capital contribution obligations unless the firm decides to increase the requirement, [Altman Weil consultant Ward Bower] said.

Generally, when a partner leaves the firm, the capital contributions are dispersed to them within a set period of time or in a lump sum, Bower said. Some firms, however, could tie up the capital contributions over a period of years, Attorney Career Catalyst founder Frank D’Amore said. That could be a “silent” way of making it more difficult for a partner to leave, he said.

So when you read about astounding profits-per-partner in the American Lawyer, don’t automatically assume that the partners get to take home every dime. At Duane Morris, for example, the firm takes four percent a year out of each equity partner’s pre-tax income for capital contributions. At Pepper Hamilton, equity partners generally kick in around 19 to 20 percent of their budgeted income toward capital contributions. A fifth of your paycheck is nothing to sneeze at.
But Biglaw associates, don’t pity the partners just yet. Many firms have no capital contribution requirement, financing their operations using debt (in the form of loans taken out by the law firm as a whole). Other firms finance their operations out of current income. And even at firms with sizable capital contribution requirements, the partners still take hoome way more than you do.
(Does this depress you? Well, cheer up. If you play your cards right, someday YOU might be the partner in the corner office, taking home a high six-figure or low seven-figure income.)
Firm Finances: Your Views May Vary [Legal Intelligencer]

nevada red rock canyon.jpg* Carter to Ensign: “I may be a carpetbagger, but you’re a Bushman.” [AP via Online Athens]
* Out here in the West, we have a rugged, independent, individualist spirit. However, we want to make sure that our judges never express it. [Washington Times via How Appealing]
* The Constitution says that the writ of habeas corpus can be suspended only in times of rebellion or invasion. When it was suspended during a rebellion, and then later during an invasion, these suspensions were found to be unconstitutional. Now it’s being permanently suspended for a certain class of people without the circumstance of either a rebellion or an invasion. I’m sure we fine. [Fulton County Daily Report (subscription)]
* Scalia to the courts: You leave the country alone, and they’ll leave you alone, mmmkay?[WSJ Law Blog]

omelette eggs.jpgWhenever we visit the Deep South, we make a pilgrimage to the local Waffle House. We confess to a weakness for the chain’s famous “Scattered, Smothered and Covered Hash Browns.”
But now we wonder: What exactly are the hash browns “covered” in?

A police officer has filed a lawsuit against the Waffle House restaurant chain and one of its former cooks, claiming the cook admitted to spitting in the officer’s food.

Police Lt. John Morgan accused 19-year-old Homer Disher in the lawsuit of spitting in his order of hash browns and eggs before serving them to him last September….

Morgan said he thought Disher was upset over a warning he gave Disher and a friend during a traffic stop a few weeks before the incident.

We find in favor of the plaintiff. The defendant cook’s name is “Homer Disher,” so liability is presumed.
Next, the question of damages:

The lawsuit seeks $82,500. In court papers, Morgan said Disher told his manager what he had done and the manager did nothing to warn Morgan or report the incident to police.

Eighty-three grand — and Officer Morgan didn’t even consume the adulterated meal? This strikes us as excessive. If this were “Fear Factor,” he’d at least have to eat the spit-drizzled breakfast to get the money.
Tenn. Police Officer Sues Waffle House [Associated Press]

guitar electric guitar.jpg* For those of you hipsters moaning about gentrification in your respective cities (but really, where is this clamor louder than in New York City?), is this what you mean by “keeping it real”? [New York Daily News via Althouse]
* While we all know what happens to pedophiles in jail, this guy should at least be thankful he didn’t find himself on the receiving end of Chris Hansen’s indignant gaze on national television. [New York Law Journal (free access available for only one more week)]
* Anything to avoid the future in-laws. [MSNBC]
* Judging from your response to our round-up of Craigslist postings, we know you’ve also partaken of those delightful “Missed Connections” on more than one occasion. Fodder for a future Non-Sequiturs. [Kizmeet]
* Is this any stranger than women applying mascara in the car? Yeah, someone should put a warning on mascara. And, as a sidenote, how cute is it that Professor Childs hosts an indie kids’ music show with his own kid? [TortsProf Blog]

barbed wire razor wire prison.jpgReally, really long.* To wit, 292 months long. For the mathematically challenged among you, that’s 24 years and four months. Ouch.
But given the size and scope of the Enron fraud, the lengthy sentence may be appropriate (even if it’s higher than many Wall Streeters expected). You can compare Jeffrey Skilling’s sentence to those of other leading white-collar criminals over at the WSJ Law Blog.
* We briefly contemplated a far more crude cinematic allusion, involving this movie, but thought better of it.
Skilling Sentenced to 24 Years in Prison [Associated Press]
Skilling Gets 24 Years [DealBreaker]
Skilling’s Sentence: 24 Years, 4 months [WSJ Law Blog]

100 dollar bill Above the Law Above the Law law firm salary legal blog legal tabloid Above the Law.JPGTime for another Skaddenfreude request. Last time around, we requested data about the salaries of solo practitioners and small-firm lawyers. We reported the results here — and we’ll happily share more such info with you, if we receive a few more submissions.
We’ve noticed that, when we make Skaddenfreude requests, we tend not to receive submissions from the attorneys who are really raking in the dough. This disappoints us. It’s also a little counterintuitive, insofar as you might expect high-flying legal eagles to boast of their financial success. But maybe they don’t want to inspire envy.
Anyway, in the hope of achieving a higher response rate, this week we’ll on people who, despite earning perfectly good money, aren’t at the top of the earnings pyramid: paralegals.
If you’re a paralegal — whether for a big firm, small firm, the government, etc. — we’d love to learn how much you make (and how hard you work to earn it). If you’d be willing to share this data with us, please follow the submissions guidelines set forth here. For item (2), provide your undergraduate rather than law school graduation year. Per our standard procedure, we will “anonymize” your submission before publishing.
Thanks! We look forward to hearing from you.
Earlier: Prior editions of Skaddenfreude (scroll down)

scalito antonin scalia samuel alito.JPGDuring the Supreme Court confirmation hearings for Justice Samuel A. Alito, some conservatives grumbled about one nickname bestowed upon him: “Scalito.” They argued that it unfairly treated him as a jurisprudential clone of Justice Antonin Scalia, without recognizing his independence as a thinker. Some also viewed the nickname as reflecting anti-Italian prejudice.
We’d like to reclaim the name of “Scalito,” and put it to legitimate use. Let’s turn it into the judicial equivalent of “Bennifer” (the first and best celebrity couple neologism, superior to “Brangelina” or “Vaughniston”). In these pages, we will use “Scalito” to refer to Justices Scalia and Alito whenever they appear in public together — as they did this past weekend.
Approximately 400 people attended a panel discussion on judicial independence, held this past Saturday at the Washington Hilton. The discussion, sponsored by the National Italian American Foundation, featured Justices Scalia and Alito, as well as William S. Sessions, a former FBI director and federal judge, and Lynn A. Battaglia, a Maryland appeals court judge.
Not surprisingly, Justice Scalia stole the show. Accounts of this Article III celebrity sighting focus primarily on his remarks. His main point was to question judicial independence as an absolute virtue: “You talk about independence as though it is unquestionably and unqualifiably a good thing. It may not be. It depends on what your courts are doing.”
Familiar stuff. His remarks about media coverage of the courts were far more amusing:

“The press is never going to report judicial opinions accurately. They’re just going to report, who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy? And that’s all you’re going to get in a press report, and you can’t blame them…. Because nobody would read it if you went into the details of the law that the court has to resolve.”

Sad but true. And Justice Alito echoed some of these sentiments:

Alito complained that people understand the courts through a news media that typically oversimplifies and sensationalizes. He said people’s ability to amplify their comments globally about judges and their opinions on the Internet takes a toll on the judiciary.

“This is not just like somebody handing out a leaflet in the past, where a small number of people can see this,” he said. “This is available to the world. … It changes what it means to be a judge. It certainly changes the attractiveness of a judicial career.”

Justice Alito, are you calling into question the value of writing about judges on the internet? If so, you’re hurting our feelings…
(By the way, if you haven’t done so already, please cast your vote in our poll to find out your Favorite Supreme Court Justice. We’ll close the voting once we have about 1,000 votes, which strikes us as a reliable indicator of ATL reader sentiment. Right now we have a little over 600. To vote, click here. Thanks!)
Scalia Rips Judges on Abortion, Suicide [Associated Press]

musical chairs above the law legal blog above the law legal tabloid above the law legal gossip site.GIFIn addition to the major move reported this morning, a few other legal professional developments worth noting:
New Partners:
* Chadbourne & Parke: Corporate lawyers Frank Vellucci and Ayse Yüksel (both in New York, but Yüksel also works in London).
* McCarter & English: Corporate lawyer Lance Friedler, securities and white-collar criminal litigator William Moran, and products liability lawyer Thomas Smith (all in the New York office).
Lateral Moves:
* Corporate lawyer Rick Frimmer, to Luce, Forward, Hamilton & Scripps (San Diego), from Greenberg Traurig.
NY Lawyers Making Partner [NYLawyer.com]

passport united states passport.jpgWe realize we’re late on this, since the news broke on Friday. But at the time, we thought Purcell v. Gonzalez was just a run-of-the-mill Supreme Court ruling. We didn’t realize it featured delicious benchslaps of the Ninth Circuit, the lower court whose decision was vacated.
The state of Arizona adopted a rule for next month’s elections requiring most voters to show photo identification before casting their ballots. Such rules, adopted by other states as well, are generally supported by Republicans — who view them as helping to cut down on voter fraud — and opposed by Democrats — who believe they may deter poor, elderly, disabled or minority voters from voting.
A legal challenge to the picture ID rule was mounted in Arizona. Some background about the case, from the L.A. Times:

In May, the American Civil Liberties Union, the League of Women Voters and several other civil rights groups sued to block the voter identification rule from being enforced Nov. 7. They called the rule a “21st century poll tax” because it could force some poor voters to purchase photo ID cards….

A federal judge refused to block the law from taking effect, but on Oct. 5, a two-judge panel of the 9th Circuit issued an order saying the law could not be enforced for the upcoming election. The appeals court did not explain its ruling.

Arizona’s attorney general asked the Supreme Court to intervene. And on Friday afternoon, the high court issued a six-page opinion that set aside the 9th Circuit’s order. It noted that the 9th Circuit’s “bare order” did not give a good reason for blocking the law from taking effect.

That’s a charitable description of the Supreme Court’s treatment of the Ninth Circuit. Here’s an excerpt from the opinion itself:

On October 5, after receiving lengthy written responses from the State and the county officials but without oral argument, the panel issued a four-sentence order enjoining Arizona from enforcing Proposition 200’s provisions…. The Court of Appeals offered no explanation or justification for its order. Four days later, the court denied a motion for reconsideration. The order denying the motion likewise gave no rationale for the court’s decision.

Translation: “Despite receiving oodles and oodles of briefing from state and county officials, the Ninth Circuit stopped Arizona from enforcing its rule — without even bothering to give the state its day in court. Then, when asked to rethink their decision, those Ninth Circuit morons just said ‘NO’ — again without bothering to explain themselves.”
The discussion continues, after the jump.

double red triangle arrows Continue reading “Benchslapped: The Arizona Voter ID Ruling”

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