Fifth Circuit

Benchslap of the Day: Fifth Circuit Orders DOJ To Write ‘We Respect Judicial Review’ in Three-Page Letter

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'I'm so glad the Justice Department respects judicial review!'

The nation recently received a lesson in constitutional law from President Barack Obama (who famously taught Con Law at the University of Chicago). As we mentioned yesterday, President Obama said on Monday that striking down the Affordable Care Act, aka Obamacare, would constitute an “unprecedented, extraordinary step,” amounting to “judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.”

The problem with this lesson: it wasn’t exactly accurate. Those “unelected” federal judges “overturn … duly constituted and passed law[s]” all the time — well, maybe not all the time, but on occasion, when said laws are inconsistent with the U.S. Constitution. It’s neither “unprecedented” nor “extraordinary,” and it doesn’t amount to judicial activism; rather, it’s called judicial review.

One prominent conservative jurist, Judge Jerry E. Smith of the Fifth Circuit, took it upon himself to set the record straight on this matter….

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Morning Docket: 04.04.12

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Jenna Talackova

* AG Eric Holder can thank Obama for this homework assignment from Fifth Circuit Judge Jerry Smith, because it seems like our president forgot about Marbury v. Madison. More on this to come later today. [CBS News]

* Dewey need to buy this Biglaw firm a functional calculator? New information shows that the imploding firm was off by roughly $153M when partners reported 2011 earnings to the American Lawyer. [Am Law Daily]

* You know there’s got to be something questionable about a law school when the accreditation machine that is the ABA gives it the side eye. And no, Duncan Law, a judge still won’t force its hand. [National Law Journal]

* Stephen McDaniel pleaded not guilty at his arraignment for the murder of Mercer Law classmate Lauren Giddings, but will he be released on bail before trial? Only if he’s got $2.5M sitting around. [Macon Telegraph]

* More law school lawsuits are coming down the pipeline, but local lawyers in Massachusetts don’t think that they stand a chance. Why? The highly-educated consumer argument strikes again. [Boston Business Journal]

* Thanks to Gloria Allred, transgender beauty queen Jenna Talackova may be able to participate in the Miss Universe pageant if she can meet the legal requirements for being a woman in Canada. [MSNBC]

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SCOTUS Grants Cert in Affirmative Action Case: ‘Cause It’s an Election Year and They Like Power’

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I called it, but it wasn’t a hard call to make.

Last year, the Fifth Circuit upheld the University of Texas’s affirmative action plan in Fisher v. University of Texas. But they did so in a petulant, childish manner, as if somebody was forcing them to eat their vegetables. At the time, I said they were openly begging for a right-wing Supreme Court to review and overturn their ruling.

It looks like the members of the Fifth Circuit are going to get their wish. The Supreme Court granted cert on Fisher, and now we get to have an affirmative action debate right in the middle of an election cycle where a black man is running for reelection.

I’m sure that last part is just coincidence though….

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Non-Sequiturs: 01.05.12

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Mountain Dew: a mouse could not survive in this environment, according to PepsiCo counsel.

* Pepsi lawyers offer a creative (if disturbing) defense to a lawsuit by a man who claims he found a mouse in his Mountain Dew. [Madison County Record via The Atlantic Wire]

* Will birther queen Orly Taitz get to depose — i.e., “rupture the jurisprudential hymen” — of President Barack Obama? That would be kind of awesome. [Columbus Ledger-Inquirer]

* Professor Ann Althouse raises an interesting “who decides?” question about Cleveland’s controversial ban on trans fats. [Althouse]

* Please, lawyers, stick to cocaine. Allegations of crystal meth usage are très déclassé. [NewsOK.com]

* Kudos to Kirkland & Ellis for coming to the defense of lesbian and gay public employees in Michigan. [Poliglot / Metro Weekly]

* It seems that the Montana Supreme Court isn’t a fan of the Citizens United decision. [Huffington Post]

* Jamin Soderstrom, a (rather cute) former S&C associate and current Fifth Circuit clerk, has written a book (affiliate link) analyzing the qualifications of presidential candidates and the relationship between résumés and presidential success. [Tex Parte Blog]

* If you’re a law professor / blogger who wants to get a rise out of fellow profs, write posts in praise of Paul Campos (just voted our 2011 Lawyer of the Year — congrats again, Professor Campos). [PrawfsBlawg]

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Non-Sequiturs: 11.07.11

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Lindsay Lohan

* Professor Glenn Reynolds notes Lindsay Lohan’s swift movement through the jail system. [Instapundit]

* Professor Orin Kerr notes Professor Stephen Higginson’s swift movement onto the Fifth Circuit — in apparent violation of the rule in judicial nominations “that a circuit court nominee with Supreme-Court-level credentials will have a harder time getting confirmed than a nominee without those credentials.” [Volokh Conspiracy]

* Professor Larry Ribstein notes the growing competition between Biglaw and the in-house world. [Truth on the Market]

* If you’re having a hard time keeping track of all the lawsuits in which law firms and their partners are parties rather than counsel, check out this handy guide from Brian Baxter. [Am Law Daily]

Professor Paul Campos

* How would you like your soon-to-be-ex spouse to have your Facebook and Match.com passwords? [Not-So Private Parts / Forbes]

* Here’s an interesting profile of Professor Paul Campos, the legal academic behind the controversial Inside the Law School Scam blog. [National Law Journal]

* And here’s commentary on Karen Sloan’s NLJ piece by Professor Paul Horwitz. [PrawfsBlawg]

* Still on the subject of scamblogging, where do retired scambloggers go? Apparently they start doing podcasts about reality television. [Top Chef Refire]

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Morning Docket: 11.02.11

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* “Rising tuition. Misleading employment statistics. Inadequate skills training.” So what are legal educators doing about it? Blogging, of course. [Law School Review]

* Trendspotting: cute judges the federal bench? The Senate has confirmed Loyola Law professor Stephen Higginson for a seat on the Fifth Circuit. [National Law Journal]

* People in New Jersey have morals. Who knew? When faced with aborting babies or aborting their careers, some nurses from UMDNJ decided to sue. [Washington Post]

* Elbert Lin is returning to Wiley Rein after a stint clerking for Clarence Thomas. We wonder what his wife would say about him if he was one of her LEWW contestants? [Blog of Legal Times]

* Another Real Housewife of New Jersey is facing legal troubles, but this time to the tune of $7.8M. Sorry Teresa, but at least Jacqueline Laurita’s got her hairline under control. [Huffington Post]

* Is Justin Bieber the father of a baby, baby, baby? That’s what a 20-year-old from California says, and she wants a paternity test to prove it. [New York Post]

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Lawyer of the Month: September Reader Poll

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Our candidates for the coveted Lawyer of the Month title have been a bit tame for the past few months. This time around, we’ve chosen some lawyers and law students who represent our more prurient interests and our unabashed love for scandal.

Aficionados of hookers? We’ve got ‘em. Vicious tongue lashings? We’ve got those, too.

This installment of the competition is the sex, violence, and stupidity edition. Check out our deadly and disorderly nominees for the month of September….

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Judicial Diva Gone Wild? Chief Judge Jones Tells Judge Dennis to ‘Shut Up’

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Chief Judge Edith Jones: Underneath her robe beats a judicial diva's heart.

Can you enforce civility by being… uncivil? That’s the question being raised, over and over again, by federal judges from Texas these days.

Before we get to the latest ridiculousness, let’s review. Back in August, Judge Sam Sparks (W.D. Tex.) benchslapped some rude lawyers with a snarky order inviting them to a “kindergarten party,” where they would learn such lessons as reasonableness and courtesy.

Ironically enough, some found Judge Sparks’s civility-seeking order to be… rude. Chief Judge Edith Jones (5th Cir.) issued an email reprimand to Judge Sparks, condemning his “caustic, demeaning, and gratuitous” order as “cast[ing] disrespect on the judiciary.” Some observers in turn thought it rude of Chief Judge Jones to call out Judge Sparks in writing, so publicly — she cc’d all of the other Western District of Texas judges on her email — when she could have just made a private phone call.

Chief Judge Jones is a highly regarded conservative jurist and a fixture on Supreme Court short lists, but she might not be the best authority on civility and etiquette these days. Check out the latest craziness — an en banc hearing before the Fifth Circuit that generated judicial fireworks, culminating in Judge Jones essentially telling a colleague to STFU or GTFO….

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Benchslap of the Day: Shouldn’t Cheerleaders Know How to Spell?

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We've got spirt! Yes we do! We've got spirt! How about you?

Give me an S! Give me a T! Give me an F! Give me a U! What does that spell? STFU!

Just in case you’re not aware, cheerleading is a pretty big deal in Texas. Everyone wants to be a cheerleader because it has some awesome perks. Cheerleaders get the rare privilege of ruling the school while they parade around spreading “spirt” throughout the halls. Cheerleaders hope and pray that they’ll land a football stud who will be their ticket out of town to work at the downtown dollar store.

And last, but certainly not least, alumnae cheerleader moms get to live vicariously through their daughters. And sometimes when former cheerleader moms don’t get what they want, they’ll — Fight! Fight! Fight with all their might! — sue over it.

Girls in my high school used to call each other names and claim Title IX sexual harassment and retaliation all the time. It was no big deal….

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A Judge of the Day, Back in the News: Fred Biery

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Judge Fred Biery

Three years ago, we bestowed Judge of the Day honors upon the Honorable Fred Biery, a federal judge in the Western District of Texas. Back in 2008, Judge Biery rejected a religious school’s attempt to join an influential statewide extracurricular organization. In the process of ruling against Cornerstone Christian Schools, Judge Biery took the Bible and turned it around on them, in a snarky opinion quoting religious texts to refute a religious school.

(His Honor apparently enjoys colorful writing. See also this amusing ruling, with shout-outs in the footnotes to such fabulous creatures as Barbra Streisand and Stephen Sondheim.)

Well, it seems that Judge Biery — make that Chief Judge Biery, as of last June — continues to antagonize organized religion. Let’s read about the latest controversy he’s incited, this time involving an imminent high school graduation ceremony….

UPDATE: Judge Biery’s ruling in the case discussed below was overturned on Friday afternoon by the Fifth Circuit. Details and links appear in the update at the end of this post.

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