October 2014

* Jurors go wild… kind of. [AP via Yahoo! News]
* This could be your fate if you have sexual relations with any animal, dead or alive, regardless of law: you could be the posthumous star of a Sundance documentary. [Editor and Publisher]
* Do not think you can know go about suing the various characters in your dysfunctional family. [Seattle Times]

Linda Greenhouse nude naked shirtless pics pictures photos photographs Above the Law.JPGThis post has nothing to do with the gastrointestinal tract of a certain Supreme Court reporter. Rather, it’s about Massachusetts v. EPA, the greenhouse gases/global warming case, argued before the Supreme Court yesterday.
We’re relatively late in covering this — you’ve probably read about it already elsewhere — so we’ll be brief.
Questions Presented:
(1) Can the EPA (read: Bush Administration) get away with refusing to regulate carbon dioxide in automobile emissions, even though a bunch of states, cities, and environmental groups want it to?
(2) Do these entities have standing to object to the refusal?
(3) Has President Bush been reading too much Michael Crichton?
Money Quote(s): Eh, there weren’t any. This argument was no KSR v. Teleflex.
And are you really surprised? It’s an administrative law/environmental law case, concerning the proper construction of the Clean Air Act, with a big threshold question about standing. Not exactly a barrel of laughs.
Likely Outcome: Who knows? We agree with Tony Mauro and Lyle Denniston: It all comes down to Justice Kennedy.
Roberts may be the Chief, but it’s Kennedy’s Court. And everyone else is just sitting on it.
Massachusetts v. EPA, No. 05-1120 [On the Docket / Medill]
Justices’ First Brush With Global Warming [New York Times]
Massachusetts v. EPA oral argument transcript [Supreme Court (PDF)]
Eyes on Kennedy as Supreme Court Debates Global Warming Case [Legal Times]
EPA argument 11/29/06: Major precedent looms? Maybe not [SCOTUSblog]
Analysis: Kennedy key to global warming challenge [SCOTUSblog]
Today at the Supreme Court: Preemption and Global Warming [WSJ Law Blog]

foot in mouth.gifToday we have TWO judges of the day. Both win the prize for their honesty and fearlessness. These jurists aren’t afraid to speak their minds, and for that we salute them.
First, there’s Judge James Brooks, of “the O.C.” — Orange County, California.

An Orange County judge with a sharp tongue and a history of making insensitive comments about ethnic minorities was publicly admonished by the Commission on Judicial Performance.

The commission cited [a] contempt hearing where litigant Arnold McMahon told Brooks that he didn’t attend a scheduled Oct. 15 deposition because he had gone to the hospital with chest pains.

“Gee,” Brooks responded. “I wonder what’s going to happen when we put you in jail, Mr. McMahon. Your little ticker might stop, you think?”

Come now — that’s a bit tepid. We’ve heard harsher words from federal appellate judges at oral argument. This was more compelling:

[T]he commission noted that Brooks had been privately chastised three times since 1996 for similar conduct. The commission-cited punishments include: a 1996 advisory letter for referring to Hispanic defendants as “Pedro,” and issuing a bench warrant for an Asian defendant for “ten thousand dollars or twenty thousand yen”…

Second, there’s Judge Wilbur Mathesius, a Superior Court judge in Mercer County, New Jersey.

New Jersey’s Supreme Court on Thursday handed Judge Wilbur Mathesius a one-month suspension without pay for making shoot-from-the hip comments that undermined the judicial system….

[Judge Mathesius allegedly] berated a jury for acquitting a defendant of illegal handgun possession. According to the complaint, Mathesius went to the jury room and said, “What the hell were you thinking?” He then told the jurors the defendant had a prior criminal record and chose to not testify because of that record; that another witness would have testified for the prosecution had he not been threatened; and that the prosecution’s principal witness was the most credible he had ever seen.

This was only one of several incidents for which Judge Mathesius was disciplined. He also made some over-the-top comments about the death penalty. When criticized for these comments before the New Jersey Supreme Court, he responded as follows:

Mathesius observ[ed] that Seventh U.S. Circuit Court of Appeals Judge Richard Posner “has written on many of the same subjects,” [and Mathesius] suggested that members of the New Jersey judiciary do the same.

Judge Mathesius, we know Judge Richard Posner. We have corresponded with Richard Posner. And you, sir, are no Richard Posner.
You are a state court judge. In the trial court. In New Jersey. In a word: ICKY.
(We mean no disrespect to the Garden State, from which we hail. But the “state court” and “trial court” aspects are proper subjects of disdain.)
Vociferous Judge Is Suspended a Month Without Pay [New Jersey Law Journal]
Judge Scolded for Insensitive Remarks [NYLawyer.com]

musical chairs 2 Above the Law legal blog above the law legal tabloid above the law legal gossip site.GIFAt the White House:
Positions in the White House Counsel’s office are some of the most prestigious and interesting jobs in the entire legal profession. And now two new lawyers are coming on board as associate counsels to the president:
* Christopher Oprison, formerly of Skadden Arps (Washington, DC); and Cheryl Stanton, a former law clerk to then-Judge Alito, and most recently of Olgetree, Deakins, Nash, Smoak & Stewart (Morristown, NJ).
The arrival of Oprison and Stanton will mean that the lawyers in the office will reshuffle their portfolios for judicial nominations. We hear that Stanton will be in charge of Fifth Circuit nominations — a subject of great interest to us.
* Also, a third lawyer — Alan Swendiman, previously general counsel of the GSA, everybody’s favorite government agency — is joining the White House staff. He’ll serve as special assistant to the President and director, Office of Administration.
At Google (which is arguably more powerful than the White House these days):
* John Kent Walker Jr., formerly deputy GC of eBay, joins the search engine giant as general counsel.
Unusual structure: Walker will report to David Drummond, Google’s senior vice president of corporate development, who will take on the title of “chief legal officer.” But hey, Google is an unusual company.
Biglaw moves, after the jump.

double red triangle arrows Continue reading “Musical Chairs: 11.30.06″

invention polish dictionary Above the Law.jpgOn Tuesday, the Supreme Court heard oral argument in the case of KSR International v. Teleflex. Here’s our quick-and-dirty summary of the proceedings.
Subject Matter / Question Presented: To qualify for patent protection, an invention must be novel, useful, and not “obvious” to a person of “ordinary skill” in the field. So how do you determine “obviousness” when you have an invention that combines already-existing products? And is the Federal Circuit’s three-part “teaching-suggestion-motivation” test for obviousness a bunch of moronic nonsense?
Money Quote(s):
From the NYT:

When [veteran SCOTUS litigator Tom] Goldstein noted that “every single major patent bar association in the country has filed on our side,” the chief justice interjected: “Well, which way does that cut? That just indicates that this is profitable for the patent bar.” And when Mr. Goldstein referred to experts who had testified that the Teleflex patent was not obvious, the chief justice asked: “Who do you get to be an expert to tell you something’s not obvious? I mean, the least insightful person you can find?”

From the Legal Times:

“Three imponderable nouns,” is how Justice Antonin Scalia dismissed the test, also calling it “gobbledygook” for good measure.

Likely Outcome: The Federal Circuit will probably get benchslapped by the SCOTUS. As Tony Mauro notes:

[W]hen Justice Stephen Breyer said he had read the briefs in the case “15 times” and still could not understand the “motivation” prong of the test, Scalia chimed in, “Like Justice Breyer, I don’t understand.”

The implied message to the Federal Circuit seemed to be: If two of the brainier justices on the Supreme Court don’t have a clue what you are talking about, a new test might be in order.

For those of you looking for a substantive, eyewitness account of the argument, we reprint below the report of Joseph (Jay) R. DelMaster, Jr., a partner at Drinker Biddle & Reath in Washington. His account includes advice about how to proceed in patent prosecutions while we await the Supreme Court’s decision.
Check it out, after the jump.

double red triangle arrows Continue reading “Dispatch from One First Street: KSR v. Teleflex”

Legal Eagle Wedding Watch NYT wedding announcements Above the Law.jpgThe weekend of November 25-26 was shockingly short on lawyer weddings.
Call us paranoid, but we began to wonder: Were the editors of the New York Times wedding pages trying to starve us of material? Did they reject almost all wedding announcements for that week in which at least one spouse was an attorney?
This explains why, instead of the usual three, we have only two couples in competition this week:

1. Virginia Lazar, David McAuliffe

2. Ilyssa Lieberman, Stephen Steinlight

Scores and commentary for the newlywed couples, after the jump.

double red triangle arrows Continue reading “Legal Eagle Wedding Watch: November 26, 2006″

Don’t give up on your day jobs.
This is our haiku.
We Haiku. Do You? [WSJ Law Blog]

supreme court 1.jpgThe Supreme Court heard a number of interesting oral arguments this week — and we’re way behind in our coverage of them. We’re working on catching up.
On that note, it’s too bad that audio recordings of this week’s SCOTUS arguments aren’t available. As noted by the WSJ Law Blog, the Court released same-day printed transcripts in Watters v. Wachovia Bank and the greenhouse gas case — but no audio broadcasts or same-day recordings.
This was pursuant to the Court’s policy of selectively releasing recordings based on whether there is “heightened public interest” in a case — i.e., whether it involves a hot-button issue. And these two cases, despite their major implications for business, environmental law, and federal-state relations, didn’t make the cut.
We’d like to echo Dahlia Lithwick’s recent call for the Supreme Court to revisit this policy of selective audio-casting:

If the Supreme Court justices really want the public to recognize that what they do is subtle and legal, as opposed to ideologically driven, why would they release the audio in precisely those cases in which they are most stridently split? Why reinforce the stereotype of a partisan 5-4 court that splits along the most-basic liberal/conservative lines?

(Oh, and Howard Bashman is with us on this — which means that of course we’re right.)
Releasing same-day audio tapes of ALL Supreme Court oral arguments, regardless of the level of “public interest,” would take a clean, bright-line approach to the issue. It would allow the public to learn more about the workings of the Court, but without the intrusion of cameras in the courtroom. Justice Breyer wouldn’t have to worry about television close-ups of his wattle; Justice Scalia could leave his eyebrows au naturel.
Finally, same-day audio release would save the Court — or the Court’s Public Information Office — from having to determine whether a case is “sexy” enough to merit broadcast. Because do you really want Kathy Arberg deciding what’s sexy?
(Speaking of Kathy Arberg, a few weeks ago the Supreme Flacktress put up a “help wanted” sign at One First Street. Out of curiosity, does anyone know whether the position is still open?)
Listen Up: The Supreme Court’s hot/cold audio-casting policy [Slate]
Should Congress Mandate Supreme Court TV? [Law.com via How Appealing]
Listen to Today’s Supreme Court Oral Arguments… Not! [WSJ Law Blog]

Capitol building Above the Law Legal Blog 2.JPGWhen they take over Congress next year, expect the Democrats to launch investigations up the wazoo — of big business, the Bush Administration, the Iraq War, and other things they don’t particularly like.
These investigations will be a pain in the hindquarters for Republicans. But they’ll be a boon for Biglaw. From TPMmuckracker.com:

In a recent memo to its clients, the white-shoe law firm of Covington and Burling warned of the increased investigative activity soon to come from the Dem-controlled Hill — and touted its credentials for representing corporations and individuals who may find themselves under scrutiny….

Are you an executive at a telecom involved in the NSA’s wiretapping program? Did your company get a sweet no-bid contract in Iraq? Well, Covington’s soon-to-be booming “congressional investigations practice” boasts such luminaries as Lanny Breuer, who was President Clinton’s Special Counsel during impeachment proceedings, and Robert Kelner, who has represented the RNC in the New Hampshire phone jamming case.

Gentlemen, start your retainers.

Interestingly enough, a number of the top white-collar shops in Washington are left-leaning. In addition to Covington, there’s Williams & Connolly and WilmerHale, both well-stocked with former Clintonistas.
Expect partners at these firms to make generous donations to Democratic candidates in the next few election cycles. They’re getting tired of being the “Administration-in-Exile” — and they have high hopes for 2008.
(On that subject, we’re still interested in getting your views on which leading liberal lawyers would be in the running for top jobs in a Democratic administration. We have our own thoughts on this, but we’d love to hear from you.)
Crusading Dems Mean Big Profits for Corporate Defenders [TPMmuckracker.com]
Memo from Covington Burling on Congressional Investigations [Talking Points Memo Document Collection]

Lee H Rosenthal Judge Lee Rosenthal Above the Law.jpgBefore the Thanksgiving break, we wrote a fair amount about some possible nominees to the U.S. Court of Appeals for the Fifth Circuit. We’ll now pick up where we left off, and continue with more detailed profiles of some of the potential nominees we mentioned.
But first, a request. A number of ATL readers have expressed interest in speculation about nominees for the open seats on the Third Circuit (Justice Samuel Alito’s old seat) and Fourth Circuit (Judge J. Michael Luttig’s old seat). If you’ve heard anything interesting on these subjects, please do share.
Today’s possible Fifth Circuit nominee: Judge Lee H. Rosenthal, of the Southern District of Texas. Here are some things we’ve heard from our readers about Judge Rosenthal:

“Best judge on the S.D. Tex. bench, which is actually passably deep. Sweet, rational, bright and tough all in one package.”

“The country could not do better, and I think even hyperpartisan Democrats would be able to see that. She’s my pick if Bush wants to avoid spending any significant political capital.”

“A stellar trial judge who would make a superlative appellate judge. And those two don’t always go hand in hand. See, e.g., Ann Claire Williams of the 7th Circuit (who should have remained an excellent district judge instead of becoming a thoroughly mediocre appellate jurist).”

(Judge Williams, if you’re reading this, please note that these are simply opinions from ATL readers. They do NOT represent our own views.)
More comments about Judge Rosenthal, from the readers of Grits for Breakfast:

“Several readers identified Rosenthal… as an] exceptional, fair, and qualified judge[].”

“One reader feared losing Judge Rosenthal or Judge Elrod as trial judges, and suggested Rosenthal deserved a 5th Circuit appointment and Elrod should fill her federal district court slot.”

“Lee Rosenthal is by far and away the most learned Judge I have ever practiced before. She seems to be fair, well-reasoned and straightforward.”

So given all this praise, why did we place Judge Rosenthal in the second tier of possible nominees — an “outside possibility” for the Fifth Circuit?
Well, to make a long story short, we hear that some conservatives are concerned about her “reliability” (i.e., her ideological consistency). And even though the new Senate will be controlled by the Democrats, the White House and the Republican on the Senate Judiciary Committee do not feel compelled to put forward nominees whose conservatism is even slightly in question.
(At least not yet. It remains to be seen whether the scrappy Chuck Schumer, aided by Nan Aron and friends, will wear them down over time.)
What do you know about these potential 5th Circuit nominees? [Grits for Breakfast]
Earlier: More Fifth Circuit Scuttlebutt: R. Ted Cruz
Some Fifth Circuit Scuttlebutt

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