10th Circuit

Morning Docket: 02.26.13

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‘Best court-ordered pajama party ever! Yay!’

* Our own Elie Mystal isn’t the only one who’s capable of fanning the flames of race baiting — it seems that Supreme Court justices can do it, too! We’ll probably have more on Justice Sonia Sotomayor’s benchslap later today. [The Two-Way / NPR]

* Patience is obviously one of this judge’s virtues, because this took a looooong time. After waiting more than a year for people to put their petty political pandering aside, the Senate confirmed Robert Bacharach to the Tenth Circuit. [Blog of Legal Times]

* Mary Jo White, the nominee to lead the SEC, will probably face her confirmation hearing in March. Her legal wranglings at Debevoise may be of interest to some, but really, who cares? She’s so cute and tiny! [Reuters]

* Mayer Brown and the terrible, horrible, no good, very bad year: gross revenue is up overall at most Biglaw firms, but not this one. In 2012, Mayer Brown’s revenue dipped 3.7 percent for a six-year low. [Am Law Daily]

* Kirkland & Ellis, now the fifth-largest Biglaw firm in the nation, is leading the market in terms of top dollar merger-and-acquisition deals. Now, if only the firm could get some bananas. [Crain's Chicago Business]

* Orderly liquidation authority may be a legitimate exercise of power under the Bankruptcy Clause, but as far as these states are concerned, it’s just another reason to hate the Dodd-Frank Act. [DealBook / New York Times]

* Remember Peggy Ableman, the judge who ordered lawyers to attend a course on remedial civility in their “jammies”? She’s now at McCarter & English, so mind your manners. [Thomson Reuters News & Insight]

* An “astronomically stupid” legal loophole? Unpossible! Gun trusts are seeing the limelight because Chris Dorner claims he used one to purchase his paraphernalia without a background check. [New York Times]

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Morning Docket: 12.27.12

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* Justice Sonia Sotomayor just ruined Hobby Lobby’s new year by refusing to block the Affordable Care Act’s contraceptives mandate. All of the members of the company’s legal team will have to scrapbook and crochet for hours to get over this loss. [Reuters]

* Harvard Law graduate Barack Obama is being feted as CNN’s “Most Intriguing Person of 2012,” but he’s currently trailing in fourth place in the most important year-end poll of all: Above the Law’s Lawyer of the Year competition. Get out there and vote! [CNN]

* Federal district court judges aren’t being confirmed as quickly as they once were, and it’s partly because our president isn’t submitting nominees as quickly as those who came before him. [WSJ Law Blog (sub. req.)]

* But even if the president nominated judges more quickly, he’d continue to face harsh opposition from the NRA, which matters because the gun group has an entire party in its pocket. [Opinionator / New York Times]

* A legal problem and a journalism problem wrapped up in a little pretty bow: David Gregory of NBC’s “Meet the Press” is being investigated for displaying an alleged 30-round magazine on the air. [Washington Post]

* One of New York’s most prestigious private schools agreed to settle the sex abuse suit brought against it by former students. Simpson Thacher partner Phil Culhane must be doing a victory dance. [New York Daily News]

* You got a fast car, and now this case will pay all our bills. Toyota settled a class action suit over unintended acceleration, and it’s touted as one of the largest product-liability settlements in history. [New York Times]

* Ay dios mio! You know that you’re never going to enjoy another vacation when you catch a hotel employee spreading his seed all over your clothes. But what did you expect? It’s Mexico. [Courthouse News Service]

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Morning Docket: 06.08.12

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* Only 44% of Americans approve of how the Supreme Court is doing its job, but that’s probably because the other 56% wouldn’t know what the Supreme Court was unless the justices were contestants on a reality show. [New York Times]

* Having nothing to do with the outcome of this Tenth Circuit appeal, apparently a juror in the underlying case had no idea when the First Amendment was adopted. As Bush II would say, is our children learning? [U.S. Tenth Circuit / FindLaw]

* Who’s going to win the “Super Bowl” of Android patent trials? Nobody. Judge Richard Posner has issued a “tentative” order which noted that both sides of the Apple/Google case ought to be dismissed. [Reuters]

* You should’ve “known better”: in case we didn’t make it abundantly clear when we spoke about NALP’s data for the class of 2011, the job market for new law grads is being classified as “brutal.” [National Law Journal]

* U. Chicago Law revolutionized the field of law and economics, but much to the school’s chagrin, everyone copied them. Now they’re thinking up new ways to do the same things. Gunners gotta gun. [Businessweek]

* Say hello to Mary Lu Bilek, the woman who’s been appointed as the new dean of UMass Law. Hopefully she’s not keen on using school credit cards for personal spending like the last dean. [Wall Street Journal]

* Occupy Wall Street protesters can’t sue NYC, its mayor, or its police commissioner, but they can sue the police. And with that news, “F**k tha Police” was sung in drum circles across the tri-state area. [Bloomberg]

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Benchslap of the Day: You Can’t Fight City Hall (or Adverse Precedent)

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CHECK YOU PRECEDENT.

The issues presented in this appeal have been previously decided. Counsel were given an opportunity to distinguish our prior cases but Appellant’s counsel used that opportunity to criticize, rather than distinguish, them. There is nothing more to say. AFFIRMED.

– A unanimous panel of the U.S. Court of Appeals for the Tenth Circuit, in a non-precedential order disposing of the appeal in Commonwealth Property Advocates v. U.S. Bank National Association.

(This unpublished order reminded me of two prior benchslaps, discussed below.)

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Morning Docket: 01.11.12

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* “It seems no one can use dirty words, except Steven Spielberg.” Well, sh*t, I’ll be damned. Is Elena Kagan going to be the voice of reason in the Supreme Court’s FCC profanity case? [Los Angeles Times]

* Ken Cuccinelli filed an emergency motion to get Virginia’s primary ballots printed. You can’t wait three days for Perry’s hearing? It’s on Friday the 13th. You know how that’s going to go. [Bloomberg]

* The Tenth Circuit upheld a ruling to block an Oklahoma law barring the consideration of Sharia law in court decisions. If this pisses you off, go and watch Homeland. You’ll feel better. [MSNBC]

* Dewey want to join the Magic Circle? Bloody hell, of course! Clifford Chance has snagged two mergers and acquisitions partners from Dewey & LeBoeuf. [DealBook / New York Times]

* What will an LL.M. get you in today’s job market? Not a whole lot. And if you’re counting that extra year of loan debt as something of value, then you’re just a masochist. [National Law Journal]

* Heather Peters, the former lawyer suing Honda in small claims court, may be SOL because of a SOL issue. Stay tuned for the results at her second hearing later this month. [Huffington Post]

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Biglaw Litigators, Rejoice! A Circuit Court Opinion on a Discovery Dispute

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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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Musical Chairs: Judge Tacha To Take Over as Dean of Pepperdine Law

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'Judge Tacha, I have a feeling we're not in Kansas anymore.'

Here’s a new mini-trend: federal judges leaving the bench to lead law schools.

In 2007, David F. Levi stepped down as chief judge of the Eastern District of California, to assume the deanship of Duke Law School.

Today, Pepperdine University School of Law announced that Judge Deanell Reece Tacha — who has served on the Tenth Circuit for over 25 years, including a term as chief judge (2001-2007) — will be the school’s new dean, effective June 1.

Judge Tacha follows in the footsteps of another federal judge: former D.C. Circuit Judge Ken Starr, of Whitewater / Monica Lewinsky fame. Judge Starr served as Pepperdine Law’s dean until he left last year for the presidency of Baylor University.

How are students reacting to news of Judge Tacha’s appointment?

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Crosses Memorializing Dead State Troopers in Utah Ruled Unconstitutional

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Today the Tenth Circuit told the state of Utah that it could no longer erect crosses by the side of the highway memorializing state troopers who have died. The WSJ Law Blog excerpts this part of the opinion in American Atheists, Inc. v. Duncan (PDF):

“This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the [Utah Highway Patrol],” the judges wrote, adding elsewhere in the opinion that “unlike Christmas, which has been widely embraced as a secular holiday. . . . there is no evidence in this case that the cross has been widely embraced by non-Christians as a secular symbol of death.”

I’m sorry, are there Hindus driving through Utah who are unaware that “Christians are likely to receive preferential treatment” in Utah? If so, I’d call that person a most unreasonable observer.

All joking aside, are we really living in a world where a simple cross to mark the death of a government worker violates the Establishment Clause?

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Musical Chairs: Judge Michael McConnell to step down and go to Stanford

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michael mcconnell.jpgStanford Law School just issued a press release announcing that Judge Michael McConnell of the 10th Circuit will be joining the school’s faculty in the fall. McConnell hails from Utah and was on Bush’s Supremes short list in 2005. From the press release:

McConnell will step down from his role on the bench to rejoin the legal academy and direct the Stanford Constitutional Law Center.
McConnell is widely regarded as one of the nation’s top judges and most distinguished constitutional law scholars. He has written broadly on many aspects of the Constitution but is best known for his work on freedom of religion–a critical area of constitutional law that he effectively redefined before ascending the bench. McConnell was appointed to the Denver-based Tenth Circuit in 2002 by President George W. Bush.

This is great news for Stanford, but surprising news from McConnell, who had already lined up his clerks for 2009-2010. McConnell is a highly-regarded judge who is reputed to be great to work for and has been known to feed clerks to SCOTUS in the past. This must come as a big disappointment for the four clerks who had been slated to work with him. David Tighe, the 10th Circuit’s spokesman, says he’s unsure of the would-have-been clerks’ plans. Well, it’s easy to get a job nowadays, right?
In a press release [PDF] from the 10th Circuit, McConnell says:

“The opportunity to serve on the Tenth Circuit has been a great privilege and one of the most rewarding experiences of my life. I will especially miss working with my colleagues on the court, whose friendship, collegiality, and commitment to upholding law and justice are a model and an inspiration. But my first love remains in teaching and scholarship. Especially at this time of grave international and domestic challenges and transformation, I want to contribute more openly to debate, scholarly analysis, and public understanding of the governing principles of the American Republic.”

Unsaid is that a Stanford salary trumps that from the 10th Circuit. And that McConnell’s SCOTUS dreams died along with Obama’s winning the election.
After the jump, we’ve got McConnell’s resignation letter to President Obama.

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