All clerk and no pay 

11/27/12

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.

Judicial tendencies 

11/27/12

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 accounts.

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 time.

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 

11/27/12

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 the job.

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 resolved.

Retweet protection 

11/27/12

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 providers.

My dinner with Craigdas 

11/27/12

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 well.

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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