Federal Judges

I have not the slightest doubt that it was entirely appropriate for U.S. forces to [take out Osama bin Laden]…. I must say I was proud of the SEALs.

– Justice John Paul Stevens, in remarks made yesterday at a dinner in Chicago. (Recall that Justice Stevens served in the Navy during World War II.)

'Once upon a time there lived a woman named Mrs. Palsgraf....'

We reacted with horror when a law firm offered University of Texas law students the opportunity to be a “Legal Assistant/Nanny.” That one was crazy. So was the UCLA Law job posting seeking a chauffeur (to drive in Los Angeles traffic, no less).

But these jobs were proffered during tougher times for the economy. Now things are better. Now, students who go to the best law schools — law schools ranked even higher than UT — don’t have to work on their wet-nursing skills in order to secure gainful employment.

Of course, if they want to take care of somebody else’s kids…

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If you read a lot of e-discovery articles — and I know y’all do — you know that judges are quickly losing any patience for attorneys who don’t have their act together during e-discovery (or even regular old discovery).

I know that nothing about the process is simple or easy. I know e-discovery is expensive and time-consuming and involves complex computer programs that most people don’t understand. But seriously, everyone needs to hurry up and figure this stuff out.

Otherwise you might end up like the attorneys for the city of Washington, D.C., who got benchslapped so hard on Monday that they won’t be able to see straight for a week.

Read on to learn about what Chief Judge Royce Lamberth (D.D.C.) described as a discovery abuse “so extreme as to be literally unheard of”….

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Does this sign also mean no blacks or women allowed?

It’s the ruling that is splitting the Sixth Circuit apart. A federal bankruptcy judge, George Paine II, belongs to an all-white country club in Nashville. But there is a pesky judicial code of conduct that says that judges “should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin,” according to the New York Times (gavel bang: ABA Journal).

That seems cut and dry to me. An all-white, all-male country club sounds a hell of a lot like an organization practicing “invidious discrimination.” But I’m not on the Sixth Circuit.

And the Sixth Circuit essentially told Judge Paine: guys in my high school used to belong to discriminatory clubs all the time, it was no big deal.

In a 10-8 decision, the circuit decided to allow Paine to continue his membership in the club and on the bankruptcy court.

So that code of judicial conduct means what exactly?

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I like crusading AGs with names like "Spitzer" more than "Cuccinelli," but that's just me.

Obamacare scored a huge victory today. Not because of an election or an impassioned debate. Not because of a fresh argument or a political compromise. Not even because of a considered legal opinion. No, Obamacare scored a major victory just because the Fourth Circuit panel randomly chosen to hear the challenge to Obamacare, an appeal spearheaded by crusading Virginia attorney general Ken Cuccinelli, will be made up of three judges appointed by Democratic presidents.

And because we live in a country where our judiciary is about as apolitical as a parliamentary house, it’s reasonable to think that at least two of the three judges (two of whom were appointed by Obama himself) will deliver an Obamacare victory.

Does anybody have a problem with that?

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It might interest you to know that if I were still an active justice, I would have joined [Justice Alito's] powerful dissent in the recent case holding that the intentional infliction of severe emotional harm is constitutionally protected speech. The case… involved a verbal assault on the private citizens attending the funeral of their son — a Marine corporal killed in Iraq. To borrow Sam’s phrase, the First Amendment does not transform solemn occasions like funerals into ‘free-fire zones.’

– Justice John Paul Stevens, in a recent speech to the Federal Bar Council in New York City, explaining how he would have voted with Justice Samuel Alito in Snyder v. Phelps (aka the Westboro Baptist Church case).

ALL YOUR DOCS ARE BELONG TO US.

Litigators at large law firms spend an inordinate (and depressing) amount of time on discovery disputes. They bombard poor magistrate judges with motions to compel. They bicker over deposition timing and location. They compile massive privilege logs. They file letter briefs with the court, explaining their entitlement to certain documents that opposing counsel is withholding, without justification.

Partners who work on such matters often say to their associates, “Find me a case in which a judge sanctioned a party for failure to comply with discovery obligations — preferably a case in which the non-compliance is exactly what opposing counsel is doing here, and ideally featuring soaring rhetoric about the importance of following discovery rules.” The associate spends several hours on Westlaw or Lexis, then returns empty-handed; there was nothing quite on-point. There was certainly no soaring rhetoric.

This shouldn’t be surprising. Do you think successful lawyers give up the practice of law in order to keep dealing with discovery-related headaches, for a fraction of what they earned in the private sector? Of course not. Federal district judges prefer to write published opinions about Sexy Constitutional Issues, leaving their magistrates to oversee the discovery playpen. In the rare discovery-related cases that do go up on appeal, federal circuit judges affirm as quickly and summarily as possible, so they can get back to the fun stuff. [FN1]

If you’re a Biglaw litigator searching for a published opinion addressing discovery issues, well, today is your lucky day. Check out this great opinion, just handed down — not by a mere magistrate or district judge, but by the U.S. Court of Appeals for the Tenth Circuit….

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Our buddy, the Honorable Alex Kozinski, is on a roll. On Monday, the chief judge of the U.S. Court of Appeals for the Ninth Circuit benchslapped a pair of wealthy, persistently annoying and mildly famous identical twins.

The same day, he gave a lecture at San Francisco’s Golden Gate University School of Law, where he declared the Internet has killed the First Amendment, or at least made it an anachronism. Heavy stuff.

More on what the judge said about the web’s effect on unsuppressable free speech, journalism and scumbag bloggers, after the jump.

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Judge Eric Melgren (D. Kansas)

A trial was scheduled to start in Kansas federal court on June 14, 2011. Defendants moved for a short continuance because one of their lawyers is expecting his first child on July 3. (The lawyer in question, Bryan Erman, is quite cute — check out that chin dimple.)

Plaintiffs’ counsel objected to the continuance — strenuously. This took Judge Eric Melgren by surprise. And not in a good way.

Judge Melgren granted the continuance — and took the opportunity to benchslap the lawyers who refused to consent….

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Although this could change, right now it looks like the federal government is about to shut down (for the first time in 15 years). Here’s an open thread for discussion.

Speaking of shutting down, we’re done for the day. To learn about how the courts and the Department of Justice will (or won’t) be affected by the shutdown, check out the excellent links collected below.

UPDATE: A compromise deal has been reached, averting a shutdown. Yay!

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