Benchslaps

Ebony and Ivory, Live Together in Perfect Harmony: Los Angeles County v. Rettele

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Ebony and Ivory Above the Law blog.jpgSeveral commenters drew our attention to the Supreme Court’s quasi-amusing decision today in Los Angeles County v. Rettele (PDF). We also received reader email about it:

“In the per curiam opinion in LA County v. Retelle (PDF), we get a nice discussion of racial harmony in the context of naked white people being awakened early in the morning by cops executing a search warrant on a house that was previously owned by black criminal suspects.”

From the Court’s unsigned opinion, joined by seven justices:

“Because respondents were of a different race than the suspects the deputies were seeking, the Court of Appeals held that ‘[a]fter taking one look at [respondents], the deputies should have realized that [respondents] were not the subjects of the search warrant and did not pose a threat to the deputies’ safety.’ We need not pause long in rejecting this unsound proposition.”

“When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well. As the deputies stated in their affidavits, it is not uncommon in our society for people of different races to live together. Just as people of different races live and work together, so too might they engage in joint criminal activity. The deputies, who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search.”

The SCOTUS reverses the Ninth Circuit? Happens multiple times each Term. Boring.
The SCOTUS summarily reverses the Ninth Circuit, in a per curiam opinion? Happens a few times each Term. Uninteresting.
The Supreme Court benchslaps the Ninth Circuit, for not being politically correct enough? PRICELESS.
(For more substantive analysis of Rettele, check out this post, by Orin Kerr.)
Los Angeles County v. Rettele [U.S. Supreme Court (PDF)]
Supreme Court Reverses Ninth Circuit in Out-of-Bed-Naked Search Warrant Case [Volokh Conspiracy via SCOTUSblog]

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Silbermannerisms: A Pair of Stinging Benchslaps

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Laurence Silberman Judge Laurence H Silberman Laurence Hirsch Silberman Above the Law blog.jpgThe D.C. Circuit’s administrative law-heavy docket can be a total snooze-fest less than thrilling. But at least that uber-prestigious court is stocked with some interesting personalities.
Like the prominent, conservative, and temperamental Judge Laurence H. Silberman. From a tipster:

How about giving a shout-out to the latest Silbermannerisms? Yesterday Judge Silberman served up these two gems in a completely run-of-the-mill case, Menkes v. DHS (PDF):

“In response, the government raises a number of threshold jurisdictional arguments. Frankly, we do not think them worth a tinker’s damn.”

“This argument [is] unworthy of the government.”

OUCH — but not out of character for Judge Silberman. More from our source:

[H]e’s badass. The all-time greatest Silbermannerism:

“If you were ten years younger, I’d punch you out!” [Silberman to Abner Mikva, in conference with Ken Starr, as recalled by Mikva -- New York Times, 9/1/1998]

Someday I’ll start a blog on the DC Circuit, and when I do I plan to make Silbermannerisms a regular feature. But in the meantime, I hope you put those quotes to good use! He’s surely the greatest Judicial Divo of all time.

Judge Silberman is certainly in the running for that title. But what about his liberal counterpart, Judge Harry T. Edwards? No shrinking violet, he.
Menkes v. DHS (PDF) [U.S. Court of Appeals for the D.C. Circuit]

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Murphy v. Boston Herald: Some Beantown Benchslappery

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Ernest Murphy Judge Ernest B Murphy Above the Law blog.jpgIt’s a bird! It’s a plane! It’s… an ATL post not related to law firm pay raises!
The Massachusetts Supreme Judicial Court recently issued a somewhat saucy opinion in a libel case brought by a state court judge, Ernest B. Murphy, against a New England tabloid, the Boston Herald. No, we don’t know who is more icky.
Given the demanding “actual malice” standard, libel cases can be tough to win — but in this case, the plaintiff prevailed. Judge Murphy won a $2 million verdict against the Herald. This verdict, as modified by the trial judge, was just upheld by the SJC.
Yesterday we sat down with the folks over at Gawker to chat about the case. Check out our IM conversation with them by clicking here.
Understanding The ‘Boston Herald’ Libel Case [Gawker]
Judge’s Libel Victory Against Paper Is Upheld [New York Times]
Murphy v. Boston Herald [Massachusetts Supreme Judicial Court (click on "Opinions" in lefthand column)]
Case Report for Ernest B. Murphy v. Boston Herald [MoreLaw.com]

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Judge Sam Sparks Does It Again

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Remember Judge Sam Sparks, of the Western District of Texas? He’s a colorful judge with a robust sense of humor, as well as a low tolerance for lawyer shenanigans and quarrels.

Back in 2004, Judge Sparks compared bickering lawyers in his court to kindergarteners. His saucy order made the email rounds, first in Texas, then around the country.

And now he offers up this poetic order, in rhymed couplets:

Keystone Media Hancock order 1 Above the Law blog.jpg

The rest of this judicial ditty, including the punchline, appears after the jump.

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Kozinski on Blogs: “Hateful Things”

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Alex Kozinski.jpgThe brilliant and irascible Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit, has handed down his opinion on blogs, and it’s scathing. The audio link is down, but Orin Kerr helpfully gives us the juicy bits:

ERIC GOLDMAN: So but what about blogs? . . .

JUDGE ALEX KOZINSKI: I hate them, hateful things.

ERIC GOLDMAN: Why do you hate blogs? . . . .

JUDGE ALEX KOZINSKI: I just think it’s so self-indulgent, you know. “Oh, I’m so proud of what I’m saying, I think the world instantly wants to know what I’m thinking today.” People wake up thinking, . . . . “I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can’t really have breakfast — really enjoy my day — until I hear the great thoughts of Howard Bashman!” I don’t think so. I go for months without ever knowing what Howard has to say. So I don’t know. I find it sort of self-indulgent. And I find it grandiloquent. And I find it annoying, particularly if I’m in an audience and people are sitting there typing in their computers.

Why is Kozinski picking on Bashman? How Appealing is the opposite of grandiloquent; it’s essentially a just-the-facts clearinghouse for the day’s news.
If the self-nominated judicial superhottie and recent ATL critic has a beef with grandiloquent blogs, a more fitting target might be the one run by his former clerks, Eugene and Sasha: the verbose Volokh Conspiracy!

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An Inconvenient Ruling: Supreme Court Benchslaps the EPA

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Supreme Court Above the Law Legal Gossip Blog.JPGA summary of this morning’s Supreme Court decision in Massachusetts v. EPA, from SCOTUSblog:

Ruling 5-4, the Supreme Court on Monday found that the federal government had the authority to regulate greenhouse gases that may contribute to global warming, and must examine anew the scientific evidence of a link between those gases contained in the exhausts of new cars and trucks and climate change. In the most important environmental ruling in years, the Court rebuffed the Environmental Protection Agency’s claim that regulating those gases was beyond its authority, and the agency’s claim that it need not take action even if it did have the power to do so. Justice John Paul Stevens wrote for the majority.

The benchslap came when the Court ordered the EPA to reevaluate its decision not to regulate carbon dioxide emissions. From the Associated Press:

The court had three questions before it.

– Do states have the right to sue the EPA to challenge its decision?

– Does the Clean Air Act give EPA the authority to regulate tailpipe emissions of greenhouse gases?

– Does EPA have the discretion not to regulate those emissions?

The court said yes to the first two questions. On the third, it ordered EPA to re-evaluate its contention it has the discretion not to regulate tailpipe emissions. The court said the agency has so far provided a “laundry list” of reasons that include foreign policy considerations.

The majority said the agency must tie its rationale more closely to the Clean Air Act.

“EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change,” Stevens said.

EPA Administrator Stephen Johnson was also ordered to write “I will not make fun of Al Gore” three hundred times on a blackboard.
Justices: EPA Can Control Car Emissions [AP via Washington Post]
EPA must consider global warming again [SCOTUSblog]
Massachusetts v. EPA (opinion; PDF) [SCOTUSblog]

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Arthur Miller Deals Justice Scalia a Reverse Bench-Slap

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Arthur Miller Professor Arthur R Miller Above the Law blog.jpgOh no he didn’t… Oh yes he did! Check out this account of yesterday’s Supreme Court argument, by the AP:

Longtime Harvard law professor Arthur Miller (at right)… was arguing on behalf of shareholders who want to sue companies for fraud. Miller is a frequent television commentator, prolific writer and possibly the inspiration for an abrasive professor in a popular account of life at Harvard.

Justice Antonin Scalia and Miller were contemporaries at Harvard Law School in the late 1950s. Miller graduated in 1958, two years ahead of Scalia.

Scalia clearly was on the side of the companies, chiming in from time to time to make Miller’s difficult task a bit harder.

After one remark, Miller let loose: “Is that because you never met a plaintiff you really liked?”

OUCH. And it must have been ten times better in person:

There was laughter and an “ooh” from spectators. Justices Stephen Breyer and Clarence Thomas laughed for several seconds, even after arguments resumed.

Miller, perhaps sensing he crossed a line, quickly added, “I took a liberty there with the justice.”

You sure did, Professor Miller — but it could have been worse. E.g.: “Yo mama is so stupid, she relies on legislative history!”
Scalia and Harvard Law Professor Trade Barbs in Court [AP via Law.com]

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Lawyer of the Day: Edward Greenspan

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Conrad Black Above the Law blog.jpgFormer media magnate Conrad Black is currently on trial in federal court in Chicago. Lord Black (at right) stands accused of fraud, racketeering, tax violations, obstruction of justice, and money laundering — serious stuff. He’s being defended by Edward Greenspan, one of Canada’s most colorful trial attorneys.
Greenspan — who went to law school with Black, by the way — can already claim the distinction of being “among Canada’s most famous lawyers.” And now “Fast Eddie” can add a new prize to his mantle: ATL Lawyer of the Day!!!
Greenspan recently got benchslapped in open court by a judicial hottie — and he clearly deserves some recognition for this achievement. For the gory details, we refer you to our big sibling, DealBreaker.
Congratulations, Mr. Greenspan! We look forward to more antics from you as the trial progresses.
Conrad Black Defense’s Routine Needs Tweaking [DealBreaker]
Où est Monsieur Black? [DealBreaker]

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Benchslapped: Does Justice Walter Tolub Need a Refresher Course in Contracts?

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New York Supreme Court 3 60 Centre Street 60 Center Street Above the Law.jpgThat’s essentially the question raised about Justice Walter Tolub, of New York Supreme Court, in a recent item by Judicial Reports:

Justice Walter Tolub is by most accounts a smart and fair jurist….

Why then when it comes to straightforward contracts and lease provisions, does Manhattan Supreme Court Justice Walter Tolub seem to hit a snag? He has been reversed 10 times in the last six months on cases that seem simple enough for a law student to find an answer that would stand up on appeal. Time and again, on a streak from September through February, the Appellate Division has said the 66-year-old jurist misinterpreted what appear to be largely uncomplicated agreements.

We’ve appeared before Justice Tolub, and he struck us as a well-prepared judge — “smart and fair,” as noted above. So we found this information surprising:

To be sure, Tolub does not have a particularly blemished record — just an apparently niggling problem. Of his 183 cases that were appealed between 2000 and 2005, he was reversed 36.6 percent of the time. During the same period, the average reversal rate for Civil Term judges in the First Department was 37.1 percent. However, only six of the over 80 judges in the Civil Term of the First Department were appealed more often than Tolub.

Justice Tolub has a reversal rate of almost 37 percent — which makes him one of the less reversed judges on that court? We’re not in federal court any more, Toto!
Back to the article:

The New Year [2007] didn’t break the spate of problematic decisions on contracts and leases. The reversal streak continued and the Appellate Division continued to overturn Tolub’s rulings, using refrains emphasizing that the original contracts in question had “plain and ordinary meaning” and “clear language.”…

The Appellate Division noted [in reversing one Tolub decision] that the court is “not free to ‘make or vary the contract of insurance to accomplish its notions of abstract justice or moral obligation.’ ”

OUCH. Please file under the “Oh No They Didn’t!!!” West headnote.
Contractual Obfuscation [Judicial Reports]

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Timestampgate: Snell & Wilmer’s Letter to Judge Dale Kimball

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Snell Wilmer LLP Character Comes Through Above the Law blog.jpgWe have obtained a letter that Snell & Wilmer partner Tracy Fowler sent to Judge Dale Kimball (D. Utah) concerning Timestampgate.
Our source for the letter expressed the following opinion (opinion! opinion! no verifiable statement of fact!):

Attached is a letter Tracy Fowler sent to Judge Kimball explaining that he is “shocked and embarrassed” that his firm was caught for the SECOND time [allegedly] trying to deceive the court. Not surprisingly, Fowler claims to have no knowledge of what transpired and assures the court that Snell & Wilmer is undertaking a thorough investigation.

The fact that the letter came from Fowler, the partner on the case in question, rather than the managing partner of Snell & Wilmer is kind of like the fox assuring the farmer that he will conduct a thorough investigation into the hens missing from the hen house.

We hope you noticed the colorful rhetoric and hyperbole employed by our source’s “hen house” comparison — which, as noted, is merely opinion (opinion! opinion! no verifiable statement of fact!).
One could hold a very different opinion based on the same facts. For example, one could argue that it was most logical for the letter to come from Tracy Fowler, rather than some other Snell & Wilmer partner, because Fowler is lead counsel in this case.
Okay, enough preliminaries. The letter appears after the jump.

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