All clerk and no pay
By Dan Brillman
A judicial clerkship is something elite law students often
strive for, treating it as a golden ticket to a successful
career. The job advertised by Colorado Federal Judge William
Martinez is no different, in that applicants should have the
usual credentials: top of their class, legal experience, etc.
The difference in Martinez's case is that clerks have to be
willing to work gratis, with no expectation that the position
will pay. Ever.
Even more galling to University of Colorado law professor
Paul Campos is that Martinez reserves the right to fire the
unpaid clerk at any time while also asking for a "moral"
commitment (i.e., a promise not to leave if something better,
like a paycheck, comes along).
Campos writes in Salon that such an arrangement may violate
the Fair Labor Standards Act, which says unpaid internships must
benefit the employees more than the employers. Because
Martinez's other clerks are being paid for essentially the same
work, a line has been crossed, says Campos.
Lest one think the idea is limited to the judiciary, the
Justice Department recently posted a "Special Assistant U.S.
Attorney" position and was looking for active members of a bar
with "1 year post-J.D. experience" willing to -- you guessed it
-- work for free.
By Erin Geiger Smith
Many articles about court holdings indicate who appointed
the judges making the decision, or whether they are part of the
court's "conservative" or "liberal" group.
But should they? That is the question The New York Times'
Adam Liptak asks today in his Sidebar column, which uses as a
springboard a recent 8-7 decision by a Michigan federal appeals
court in a college admissions case. The decision found that the
state could not ban racial preferences in admissions to public
colleges and split along party lines, according to news
Liptak acknowledges that his Supreme Court colleague,
SCOTUSBlog's Lyle Denniston, has also looked at the Michigan
ruling and noted in his column that he indicates a judge's
politically leanings only if it is "clearly demonstrated that
the political source of a judge's selection had a direct bearing
on how that judge voted." (Denniston also admits that'll be a
tough line to draw.) Liptak takes a slightly different tack and
consults a book scheduled to come out in January that analyzes
data on the role of ideology and political affiliation in
judicial decision making. His not-so surprising conclusion is
that justices appointed by Republicans vote more conservatively
on average that those appointed by Democrats. In affirmative
action cases between 1995-2008, Republican appointees favored
upholding affirmative action 41 percent of the time, compared
with Democratic appointees voting that way 66 percent of the
The reason for the gap, writes Liptak: Ideology. University
of Southern California professor Lee Epstein, one of the book's
authors, said voters and legislatures all understand the
difference between a Republic appointee and a Democratic
appointee. "If they didn't, we wouldn't have confirmation
battles," she told the NYT.
All of course this all seems a bit obvious, but it does
bring home the importance of appointing judges. One judge who
could be expected to shrug his shoulders at this news is Supreme
Court associate justice Antonin Scalia, who during a September interview at Reuters harrumphed at the suggestion that the
Supreme Court was political. Scalia's take is more egg before
the chicken - they're appointed in the first place because of
who they are, and who they are informs how they vote, he said.
Remember the Alamo
By Erin Geiger Smith
The Texas attorney general's office says a non-profit group
responsible for maintaining the historic fort has fallen down on
Remember the Alamo, Daughters of the Republic of Texas?
A report issued this month by Texas's attorney general's
office suggests the short answer is no: The non-profit, which
for a time served as the trustee for the noted Texas landmark
and was responsible for its day-to-day operations, failed "its
fiduciary duty to Texas," neglected to "properly preserve and
maintain the Alamo" and misused state funds for the
organization's own benefit, the report states.
The imbroglio began in 2010, when the Texas AG received a
complaint from an informant who alleged DRT and its senior
members were not maintaining the Alamo, site of the most famous
battle of the Texas Revolution. The AG's office followed up with
an investigation, which serves as the basis of the report. In
the meantime, the Texas legislature passed a law in May 2011
transferring control of the Alamo from DRT to the state's
general land office. Because DRT is no longer the custodian of
the Alamo, the attorney general is not pursuing additional
remedial action against the group. (Hat tip: Watchdog.org.)
DRT president Karen Thomson disputes the contents of the
report and expresses frustration that the group wasn't given a
courtesy copy prior to it being issued. "DRT is shocked at the
outrageously inaccurate conclusions within the report," Thomson
tells the San Antonio Express-News. She says the report deals
with issues that surfaced three years ago and were already
By Suhrith Parthasarathy
As many as 10,000 tweeters are facing legal action in the
United Kingdom following waves of tweets that erroneously linked
a retired Conservative Party official to child abuse. The
official, Alistair McAlpine, received 185,000 pounds ($294,000)
from the BBC after a victim of the scandal confirmed that
McAlpine was not one of the attackers. According to The Guardian, McAlpine has identified 20 high-profile tweeters,
including the speaker of the House of Commons, and is seeking
libel damages from them. The newspaper says that tweeters with
fewer than 500 followers can use a website created by McAlpine's
law firm to settle the claims by making a donation to charity.
How would such a case unspool on this side of the pond? L.V.
Anderson writes in Slate that a person posting a libelous
statement on Twitter or Facebook in the United States can
potentially be sued for original content. However, if someone
retweets a statement -- as many in the British case did -- the
retweeter can cite the Communications Decency Act, which
protects people who rely on information from other content
My dinner with Craigdas
By Erin Geiger Smith
The hottest reservation in Los Angeles, says The New Yorker,
is in the kitchen of Craig Thornton, who cooks at his home for
up to 16 strangers several nights a week. But if attorneys want
to join, they better bring along someone a little hipper as
When Thornton announces a new dinner, he's inundated with
requests from hundreds of would-be guests and chooses from them
with an eye to "occupational balance," the article
says. Recently, for instance, he discovered via Google that all
the people at the table would be lawyers, which he rejected as
"too monochrome," the magazine reports.
So who should legal gastronomes try to include as their
companions? Recent attendees include a producer for Quentin
Tarantino films, a former Ultimate Fighting Champion and a kid
from Fresno who drove four hours to attend.
Summary Judgments for November 26
Summary Judgments for November 23
Summary Judgments for November 21
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