Federal Judges

On Tuesday, the D.C. Circuit ruled against Matt Sissel, the Iowa artist and entrepreneur who challenged the Affordable Care Act’s individual mandate on the grounds that the law violated the U.S. Constitution’s Origination Clause. Article I, § 7, clause 1 requires that “all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.” Obamacare raises government revenue by billions of dollars, but it was drafted in the Senate. Judge Judith Rogers wrote the opinion in Sissel v. HHS for a panel including two newly minted Obama appointees, Judge Nina Pillard and Judge Robert Wilkins.

This ruling comes in the wake of last week’s dueling decisions in Halbig v. Burwell and King v. Burwell. Another D.C. Circuit panel found that Obamacare subsidies were illegal in the 36 states that refused to set up state healthcare exchanges. On the same day, the Fourth Circuit disagreed. In court battles, Obamacare opponents are winning some and losing some.

What should we make of their track record so far?

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Litigators get away with a lot of obnoxious stuff during discovery. For better or worse, the pre-trial discovery phase of civil litigation is every lawyer’s opportunity to relive those times when parents leave kids alone for the first time: every slight, disagreement, and jealousy on a slow boil explodes into anarchic back-biting once there’s no authority figure around to enforce civility. Bring on the mean-spirited letters and smack-talking RFAs.

When it comes to depositions, it doesn’t always reach “fatboy” levels, but a federal deposition isn’t a deposition until someone threatens to call the magistrate — though never does.

Which is why this benchslap, where a federal judge levies a sanction straight out of elementary school, is so appropriate….

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And you’d think it would be Justice Scalia. But you’d be wrong!

So what darkened this legal luminary?

If you guessed “shadowy intelligence services,” you’re right. Congratulations! ATL would like to send you your prize! You win &#9608&#9608&#9608&#9608&#9608&#9608&#9608. Remember to ask for it by name.

Opinions get redacted or sealed all the time, but the latest from the Seventh Circuit is a doozy….

double red triangle arrows Continue reading “Someone Really Wants To Shut Up Judge Posner”


Rarely are the stakes of a benchslap elevated to the level of life and death.

And yet, a federal judge made just such a life and death call recently in swatting down an annoying lawyer wasting the court’s time with a litany of discovery disputes.

Thankfully, despite the stakes it’s a pretty funny benchslap….

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* “[T]he nation’s last explicit ban of the right to bear arms has bitten the dust.” On Saturday, a federal judge said D.C. couldn’t ban the carrying of guns in public for self-defense. [Legal Times]

* Late on Friday, Florida’s ban on same-sex marriage was tossed by a state judge, making it latest in a string of major legal victories for marriage equality. Congrats, Floridians! [Bloomberg]

* There’s been some new updates in the case of Dan Markel, the young FSU Law professor who was murdered in his own home. We’ll have more on the details police released later today. [CNN]

* “I’ve come to the realization I’d really like to have a paycheck at some point.” Ouch. Law school graduates in Florida are starting to feel the pain of a very tough job market, and they’re not too happy about the situation. [Tampa Bay Times]

* “[T]hey treat us like step children instead of adoptees.” A group of Texas Wesleyan Law graduates have filed a complaint (in vain?) with the ABA in the pursuit of new diplomas from Texas A&M Law. [WFAA 8]

‘You just got trolled so hard, judge.’

Lawsuits and motions filed by serial litigants like Jonathan Lee Riches — the most famous one of them all — typically get passed around by the mainstream media for some laughs, and are then quietly dismissed by the judges unfortunate enough to be assigned the cases.

But this time around, a federal judge was apparently duped by a very peculiar motion that was supposedly submitted on behalf of the man he once sentenced to 150 years in prison. Of course, Judge Denny Chin of the Second Circuit must have thought it was odd that Bernard Madoff claimed “bio-electric sensors” and “voice-to-skull technology” were to blame for influencing the legal proceedings against him, but the good judge issued a real order in the case nonetheless.

What else did this wild motion say, and who was behind the filing?

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My experience with federal court is limited to three months externing for a district judge after first year of law school (that and testifying in a homicide case, but that’s another column).  The time was occasionally depressing (can you say “pro se”?), always sobering (you mean the judge is actually going to rely on my legal research??), and ultimately a decent dose of reality after enduring nine months of the alter-world that is being a 1L.

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We overuse the word “childish” when discussing the behavior of lawyers. This dispute though is so utterly childish it can be summed up as “Teacher! Denise swore!” and “But, Dan did it first!”

Rare is the opinion with the word “a**hole” (though without the wusstrisks we use on this site) in the opening sentence. But that’s what you get when a judge levels a benchslap against one side for “intemperate language,” which is apparently a thing that lawyers shouldn’t use.

Now lawyers can be a salty bunch, so it takes a serious outburst to earn the ire of a federal judge. And this woman doesn’t disappoint, allegedly drafting an aggressive email peppered with “intemperate language” combined with shady tactics and outright lying. It’s a cocktail of behavior that deserves consideration if you’re looking for case studies for a professional responsibility course. As the judge writes in his opinion, this is one where the lawyer should have hit “delete” instead of “send.”

double red triangle arrows Continue reading “Judge: ‘“You’re An A**hole, Dan” Is Not How An Attorney Should Address Her Adversary.’”

The old ball and chain, dischargeable in bankruptcy only in the most limited of cases. Go ahead, try and prove you’ve got a ‘substantial hardship’ preventing you from paying. We dare you.

* Now that a federal judge has classified California’s death penalty as unconstitutional, it’s only a matter of time before the issue reaches the Supreme Court. We have a feeling the justices will likely roll their eyes. [National Law Journal]

* Word on the street is that Bingham McCutchen has got the urge to merge, and has apparently spoken to a handful of potential partners over the course of the past three months. We’ll have more on these developments later. [Reuters]

* As it turns out, it was neither Wachtell Lipton nor Jenner & Block that managed to snag the coveted GM litigation oversight job. Nice work, Quinn Emanuel — you’re considered a “well-respected outside law firm.” [WSJ Law Blog]

* Congrats, Flori-duh, you did something right. A state court judge has ruled that Florida’s ban on gay marriage violated the U.S. Constitution in the latest post-Windsor victory for equality. Yay! [Bloomberg]

* Thanks to their hundreds of thousands of dollars in law school debt, many graduates are considering declaring bankruptcy. Too bad most won’t be able to get their loans discharged. [Connecticut Law Tribune]

On Tuesday evening, I returned to the offices of Wachtell Lipton, the law firm where I toiled as an associate years ago. Luckily, I wasn’t there to bill hours; instead, I attended a reception marking the launch of a delightful new book, The Mother Court: Tales of Cases that Mattered in America’s Greatest Trial Court (affiliate link).

“The Mother Court” is the nickname for the U.S. District Court for the Southern District of New York, regarded by many as the preeminent federal trial court in the nation. In the book of the same name, James Zirin, a leading litigator who’s now senior counsel in the New York office of Sidley Austin, shares with readers the fascinating history of this top tribunal.

In a review that ran yesterday in the New York Law Journal, Thomas E.L. Dewey hailed the book as a “richly textured, immensely readable overview of the modern history of the Southern District of New York.” Last month, in the New York Review of Books, Judge Jed Rakoff praised Zirin’s “fluid prose and eye for detail.”

What fun tidbits and interesting opinions did James Zirin share in his remarks on Tuesday night?

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