The Court has posted some information about applying to be a law clerk at the Texas Supreme Court. These clerkships will begin in August 2010. (A color brochure with the same information was also posted.)

I’ve written before about my experience as a law clerk at the Texas Supreme Court. The Court notes two of the unusual features of this clerkship:

Unlike most appellate courts, the Texas Supreme Court has discretionary review only of civil cases and almost exclusively among appellate courts permits law clerks to sit in conference for deliberations. [emphasis in original]

Each of the Court’s nine Justices has two law clerks, as well as a career staff attorney. The law clerks positions are typically one year, although some Justices may offer two-year positions.

Applications should be sent to each Justice to whom you are applying.

The posting indicates that applications will be welcomed beginning September 8, 2009 — the same official starting gun after which federal courts, in theory, also begin their hiring process for law clerks. (( Some federal judges treat that deadline with about as much reverence as the highway speed limit. Most of them stay near that schedule, but those who scrupulously adhere to the rule out of principle seem to get left behind. ))

Justice Harriett O’Neill released a statement today through the Court’s public information officer:

This week I met with Chief Justice Wallace Jefferson and informed him that I do not intend to seek reelection when my term expires in 2010.
…
I have not yet decided what my future career path will be. I only hope that my service has justified the confidence placed in me by the voters who have four times elected me to the bench. For that I am forever grateful.

The statement also thanks her family, as well as her past and present court staff. In addition to listing each law clerk by first name, (( “And a special thank you to my law clerks Josh, Monica, John, Sinead, Basheer, Juliet, Ben, Ryan, Patrick, Stephen, Michelle, Reagan, Andrea, Molly, Aaron, Gavin, Megan, Neda, Ashley, Leah, Jenn, Josh, Julian and Whit, for the knowledge and fun we have shared, and the camaraderie I know will continue beyond the bench.” )) Justice O’Neill singles out Ginger Rodd for her service as staff attorney for the ten years Justice O’Neill has been on the Texas Supreme Court.

Justice O’Neill’s term runs through December 31, 2010. In the more immediate future, this announcement opens up the Republican primary nomination field for that seat on the Court. It may also spark more interest from Democratic challengers.

There is a pending case in Louisiana that could become very significant for lawyer advertising in Texas. In Public Citizen, Inc., et al. v. Louisiana Attorney Disciplinary Board, et al. (E.D. La. Aug. 3, 2009), the court struck down parts of Louisiana’s rules about attorney advertising on the internet — including the requirement that these ads be filed and approved in the same manner as other ads, with a $175 fee for the privilege. [link to summary judgment order]

One example discussed by the court was a pay-per-click advertising campaign that included 12 different variations of ad text for a total cost to the firm of $160. Under Louisiana’s filing requirements, those costs would have been dramatically higher. (( The assumption in the opinion is that each ad variant would have required a separate filing fee of $175. That would certainly have been true if the advertising firm made changes to its ads over time trying to boost their effectiveness, which is a how the pay-per-click advertising model works in practice. ))

The court held that filing requirement unconstitutional “as it pertains to the filing requirements for internet advertising.”

The court also held Louisiana’s blanket extension of its advertising rules onto the internet was unconstitutional because the state had not carried its burden of showing that this extension directly and materially advanced any state interests or that it was sufficiently narrowly tailored to do so in light of the distinct character of internet communications.

The parties have been ordered to submit a proposed judgment next week.

If this case makes its way up to the Fifth Circuit, Texas practitioners could get some guidance about the viability of Texas’s similar restrictions on lawyer advertising on the internet.

There was a really interesting recent thread on the Volokh Conspiracy about whether West or Lexis selling access to appellate briefs was copyright infringement.

Both sides have something to say. Once a brief is filed, it takes on a certain public character that may inform the fair-use analysis. On the other hand, West and Lexis are just charging for access to those briefs, adding nothing of any analytical value to the text, so the fair-use argument is weak. (( Raw access is worth something. But you can’t sell photocopies of a hard-to-find book just because it’s hard to find. But see Google Books, I suppose. ))

The courts have technical ability to post PDFs of briefs on their websites, and some do. The Texas Supreme Court does a good job of this, although they only post briefs for cases that make it to the Briefing on the Merits stage.

The big barrier seems to be getting the briefs into an electronic form. Frankly, in 2009, we should be expecting litigants to do this. (( The PDF doesn’t have to arrive at the same moment as the brief, but court rules that permit it to be filed a few days later would take the pressure off even the least technically savvy lawyer.

While I’m making up imaginary rules, I would also make it a requirement (not just a suggestion) that the PDFs be word-searchable, unlike about half of the electronic briefs on the Texas Supreme Court’s website now. ))

But just last week, I was required to file an extra paper copy of a brief in the court of appeals “for the publisher.” In other words, I’m paying for a brief that will be handed to a third-party to scan and sell back to me or to others.

That smells wrong. If the publisher-generated PDFs also showed up on the courts’ sites, I might live with it. But that doesn’t happen to my knowledge. And if it did, I would bet the PDFs would be intentionally crippled in some fashion — which is what West does with its transcripts of the Texas Supreme Court’s oral arguments. (( West transcribes them, prints them out onto paper with the West logo, and then scans those documents back in so they are not word-searchable. It takes extra work for West to make those PDFs less useful to the public. And they have the nerve to slap a copyright notice on the transcript, too. ))

If West or Lexis claims copyright in some part of my brief, that will add an even more entertaining level to this silliness. I’ll let you know.

The Texas Supreme Court’s online calendar has been updated. The days for oral argument this fall are:

• September 8, 9, 10 (Tue/Wed/Thu)

• October 6, 7, 8 (Tue/Wed/Thu)

• November 18, 19 (Wed/Thu)

• December 15, 16, 17 (Tue/Wed/Thu)

The Court has already granted enough cases to fill those September, October, and November argument slots.

If your case has been granted and is awaiting an argument setting, this is your last and best chance to let the clerk’s office know if one of these dates poses a conflict for you.

I was recently told about the Clerkship Notification Blog, which offers a forum to share information about federal and state clerkship offers.

This very specialized job market for new graduates is often shrouded in mystery, so this could be a good resource, especially if you are looking for clerkships far from your home school.

It includes a Texas state court page that’s still fairly quiet for the 2010-2011 job market. I’ve written before about clerking at the Court.

Meanwhile, a good chunk of the federal judiciary has been hiring before the official starting gun. A competing site, Law Clerk Addict, “documents which judges interviewed applicants and/or partially or fully completed the 2010-11 hiring process before September 8, 2009.” So far as I can tell, this site is limited to the federal judiciary.

In its orders this morning, the U.S. Supreme Court has reversed the West Virginia Supreme Court’s decision in Caperton v. A.T. Massey Coal, holding that the federal Due Process Clause required Justice Benjamin to recuse himself. The Court divided 5-4; both opinions are here. The majority was written by Justice Kennedy, the dissent by Chief Justice Roberts. (If you have even casually followed the U.S. Supreme Court, you can guess the other Justices joining each opinion.)

[Read more →]

The Statesman editorial board asked the Governor to veto a bill about Texas beaches.

In the next-to-last day of the recent regular legislative session, lawmakers OK’d House Bill 770 to allow homestead exemptions for property from which homeowners had to move because of natural disaster damage.

Seems reasonable. What doesn’t seem reasonable is the amendment added in the session’s closing hours. …

What it does is allow Bolivar property owners to rebuild on their property even though it is now, as a result of Ike, on public beach land.

The article mentions the arguments of both sides, with advocates saying the bill is really “about eminent domain” and opponents (including Land Commissioner Jerry Patterson) arguing that there are other policies that need to be weighed.

But the Statesman seems most concerned about how this provision was added to the law.

The amendment makes a significant statement about public beaches and private property. Significant enough to warrant full legislative review, complete with public hearing.

Patterson, never a mincer of words, told the Houston Chronicle: “My opinion is just to say, ‘Screw you, Wayne Christian,’ because the Legislature didn’t pass this, one guy passed this.”

In his e-mail, Christian railed about Patterson’s “cursive language.”

We’re really not sure what “cursive language” is, but perhaps this falls under that header: Perry should veto the damn bill.

If the bill does become law, it might weigh on the pending case Severance v. Patterson, No. 09-0387 (DocketDB), a certified question from the Fifth Circuit asking about how Texas law deals with rolling easements on beaches.