I’m impressed.

I posted a few weeks ago about a study of state supreme court influence that ranked California first — and Texas well down the list. I also responded to a post on Blawgletter that demanded, perhaps rhetorically, an explanation for Texas’s overall rank and for the seeming fall in that rank in the past two decades. I offered a few hypotheses, including one that sparked some controversy. (( I suggested that the way Shepards counts “follows” tended to rank common-law decisions higher than statutory-based decisions — and thus would tend to overweight courts that were expanding or contracting common-law doctrines rather than interpreting state statutes, such as those limiting tort recoveries.

I’m not sure that hypothesis will hold up once I can examine the data in more detail, but it made — and still makes — sense to me as a question of legal reasoning. A court deciding a pure common-law question can add to the legitimacy of its decision by looking outside state lines to find similar threads in the law. By contrast, a state court deciding a pure statutory question derives legitimacy by looking at the text and other tools for discerning legislative intent; how a sister state construed its own similar statute is (with the important exception of “uniform” laws), relevant only insofar as it informs the Court’s judgment about what the legislature intended the text to mean. The resulting decision isn’t “following” a sister court; it’s following the statute. ))

I later had a nice email exchange with one of the authors of that study, and I’m impressed at how generous the authors have been about sharing their raw data. A little earlier this week, they helpfully sent a case-by-case breakdown of the Texas cases. You’ll hear more about that when I’ve had a chance to look more closely.

I’m also impressed that Blawgletter not only requested the same data — but has already posted an analysis of what the data seems to suggest about the partisan composition of the Court. That’s quick work. And what he found was thought-provoking.

His thoughts, and my reactions, follow the break.

[Read more →]

The Texas AG’s office has formally announced the hiring a new Solicitor General — Jim Ho. Actually, for now Texas has two-and-a-half SGs. The former SG (my old boss Ted Cruz) is still working in the office for the time being. (( There has been no announcement of what Cruz’s plans for the future are. There is, however, this tidbit from the April 7, 2008 National Law Journal that a reader points out to me: “As for Cruz, a former Bush administration Department of Justice and Federal Trade Commission attorney who also aided the Bush presidential effort in the 2000 Florida recount battle, he has been touted as a potential gubernatorial candidate, as well as a potential federal appellate judge. ‘This has been a fabulous job and we’ll see what the future brings,’ he said. Most immediately, that future includes a date with the Supreme Court [on April 16th presenting an amicus argument in Kennedy v. Louisiana].” )) And, as the press release emphasizes, the Deputy SG (Sean Jordan) is now part of the “leadership team” (which I always thought he had been). I haven’t met Ho yet, but I expect to cross paths with him fairly soon. (( In addition to the many details in the press release, Ho has the distinction of having co-written a paper in 2003 with John Yoo about “unlawful combatants” and the Geneva Convention. Harvey Kronberg at Quorum Report seems concerned today, but I think that’s premature. It’s only if Texas secedes and begins to wage its own foreign policy that we should start to worry about how Texas would treat “unlawful combatants.” [Update: Harvey made a new post today (Thursday) moderating his earlier criticism after more carefully reading the linked article. Along the way he notes that Ho has gone out of his way to distance himself from some of Yoo’s more controversial statements on the subject.] ))

What’s somewhat unusual about Ho’s legal career path is that he did his Supreme Court clerkship midstream, after he had already spent five years as a lawyer working in the political branches. According to the data on his LinkedIn profile, Ho finished his clerkship for Justice Thomas in July 2006.

The Sophistic Miltonian Serbonian Blog notes that this SCOTUS clerkship may help Ho as a state solicitor general when the State has a case there. (The SG’s office oversees the State’s appellate litigation in other courts as well, including handling many of the State’s cases in the Texas Supreme Court.)

The recency of that clerkship may, however, raise one small speed bump — the United States Supreme Court’s rule barring former clerks from participating in cases before that Court for two years from the end of their clerkship. Because Ho’s clerkship at the Court did not end until July 2006, he is barred (if I understand the rule) from any participation in the United States Supreme Court docket until late this summer. I’m confident that the Texas SG’s office has other lawyers capable of handling those duties until then.

I’m told that the Court introduced its new general counsel and its new attorney for original proceedings (“mandamus attorney”) at the recent “An Evening with the Texas Supreme Court” event in Austin. Unlike the Clerk of the Court and the Rules Attorney — who interact directly with the public — these attorneys work behind the scenes.

• Alice McAfee is the new general counsel, moving over to that job from her prior position as mandamus attorney.

• Shelby O’Brien is the new mandamus attorney.

The Court’s website still shows an active job listing for the Court’s “central staff attorney.”

These are some links I missed last week:

• The insurance world is buzzing over the decision permitting — with some limitations — insurers to use their own internal staff counsel to represent their insureds. Here is how Insurance Journal discusses the case.

• Blawgletter’s gut reacted very badly to the Court’s recent uninsured-motorist decision, Nationwide Insurance Co. v. Elchehimi, No. 06-0106. Blawgletter said:

  “We expect that the Elchehimi decision will earn the ‘followed’ designation in Shepard’s from zero of the Court’s sister courts around the nation. Because a persuasive legal opinion can’t simply string quotes and cites and sentences and paragraphs together and state a conclusion that seems colorable to the majority. The opinion must also make compelling sense. It helps if it seems fair. Elchehimi, in our view, may reach colorability, but it falls painfully short of convincing. Not to mention of fairness.”

  My first impulse was to suggest that the more appropriate place to “simply string quotes and cites and sentences together and state a conclusion” is the blogosphere, but on re-reading and thinking more about Blawgletter’s post, I see that my jocular response would have been unfair. Although I disagree with how Blawgletter has been interpreting those “followed” statistics, the Elchehimi case does leave unanswered many more hypothetical tort-law questions than the narrow statutory-construction question it answers. While that is not a fatal flaw in a judicial opinion, it does frustrate those who are expecting a common-law tort rule (“what happens in each circumstance and why?”) rather than a textual analysis (“what did the Legislature say?”). I may have more to say about those divergent world views in the context of Elchehimi later.

  The hypotheticals also frankly scare me. Do these hypotheticals of cars spontaneously splitting in half really happen often enough to create confusion in the law? If so, it seems like our biggest concern on the highways isn’t which insurance rider might cover the damage.

Older Cases

• The BP Refinery case moves forward with the long-sought deposition of the former CEO Lord Browne. It was a one-hour telephonic deposition. As reported in the Houston Chronicle, the plaintiff’s counsel “said the deposition revealed no smoking guns, and Browne said nothing that would help or hurt plaintiffs in ongoing blast-related litigation.”

  The idea that a one-hour telephonic deposition could result in “smoking guns” seems fanciful (especially because “smoking guns” are pieces of tangible evidence, such as documents, that either contradict testimony or make it immaterial), but I imagine that was how the reporter phrased the question.

Cases in Lower Courts

• A state district judge has struck down the $5 fee assessed by the Texas Legislature on customers of strip clubs — colorfully named the “pole tax.” The L.A. Times article is more in-depth (one suspects there was a fistfight over this article assignment) and includes quotes from the principals, including a statement from the AG’s office that it will “vigorously appeal.”

  It is no surprise that the word “vigorously” was used — that adverb seems almost required in press releases, as if it adds an extra heft — but I’ve never quite been sure what that word means in the staid, subdued world of appellate litigation.

  Is “vigorously appealing” something like “strenuously objecting”? Or does it signal that perhaps the office will seek a permissive direct appeal to the Texas Supreme Court because this district court order invalidates a statute on constitutional grounds?

  I will count “vigorously appeal” as this week’s “We’re taking it all the way to the Supreme Court!” winner, whether the State chooses to take that journey in one step or two.

• The Fourteenth Court has decided that Michigan’s workers-compensation law bars relief pitcher Doug Brocail from bringing claims against the Detroit Tigers, his former employer, for injuries he suffered while playing there.

  Brocail later pitched for the Rangers, the Padres, and (now) the Astros.

In the Washington Post, George Will writes a column about the relationship between political affiliation and personal charitable giving. It begins this way:

Residents of Austin, home of Texas’s government and flagship university, have very refined social consciences, if they do say so themselves, and they do say so, speaking via bumper stickers. Don R. Willett, a justice of the state Supreme Court, has commuted behind bumpers proclaiming “Better a Bleeding Heart Than None at All,” “Practice Random Acts of Kindness and Senseless Beauty,” “The Moral High Ground Is Built on Compassion,” “Arms Are For Hugging,” “Will Work (When the Jobs Come Back From India),” “Jesus Is a Liberal,” “God Wants Spiritual Fruits, Not Religious Nuts,” “The Road to Hell Is Paved With Republicans,” “Republicans Are People Too — Mean, Selfish, Greedy People” and so on. But Willett thinks Austin subverts a stereotype: “The belief that liberals care more about the poor may scratch a partisan or ideological itch, but the facts are hostile witnesses.”

Will’s column proceeds to discuss a book by Professor Arthur C. Brooks titled “Who Really Cares: The Surprising Truth About Compassionate Conservatism,” as well as some other tidbits taken from Justice Willett’s review of that book in last fall’s issue of the Texas Review of Law and Politics.

For those who don’t always find law review articles entertaining (and, if you don’t, I think you may be on the wrong blog), you will be relieved to know that Willett’s article includes color images of various signs and bumper stickers (as well as a Peanuts cartoon for good measure). Here’s a sample:

Yes, that little numeral three in the corner is a footnote. While you may never before have wondered how to cite to a bumper sticker in proper bluebook form, you’ll be pleased to know that Justice Willett’s “intrepid” research assistant (credited in the first footnote) has found an answer that survived editorial-board scrutiny.

Contrary to his initial expectations, Brooks found in his study — Who Really Cares: The Surprising Truth about Compassionate Conservatism — that conservative politics strongly correlated with personal charity. Willett’s piece explores what aspects of conservatism might lead to this statistical result and ultimately praises Brooks’s conclusion that the answer is for both sides of the political divide to more fully embrace charity. (( From Willett’s article:

Most of this chapter, though, is devoted to Brooks’ exhorting
liberals to put their money, literally, where their mouths are and to
confront head-on “one of the greatest political hypocrisies of our time
. . . the pious sloganeering about liberals in America being more
compassionate than conservatives.” Brooks is adamant: “This
stereotype is false, and it is a disservice to our country.” Liberals
should be proud liberals, he insists, and not reject their core values,
but they should reject those forces that depress personal generosity: “I
am asking liberals to stand up for charity.” ))

In a commentary piece now available on the San Antonio Express-News website, the Court’s staff attorney for public information Osler McCarthy talks about some of the statistics that have been circulating in recent articles.

His basic points are that the statistics being used in the press don’t match the Court’s internal statistics and that they overstate the nature of the backlog. At the same time, he acknowledges that a backlog exists, which he says is strongly correlated to new Justices joining the Court and getting up to speed. I think he’s right on both points, although I tend to think that there are other institutional factors at work, too, such as the increased role of per curiam opinions and the way the current briefing-on-the-merits process precedes the decision to grant.

Osler writes:

A Dallas television station used another would-be watchdog’s calculations to report on the court’s backlog and opinion production, but the watchdog omitted two months of the court’s term last year, calculating the average time for issuing opinions at 152 days more than the Office of Court Administration officially reported to the Legislature.

The two months they omitted were July and August — when a burst of opinions traditionally occurs at the end of the fiscal year. Last August 31st alone, the Court decided 13 causes.

Before all that, two newspapers reported the court’s backlog at 111 petitions at the end of December. But the actual figure for pending “cases” — those that will be decided by one opinion — was almost half that. That’s because petitions can double or triple up in one case, and when you throw in cases involving petitions that had not even been argued by the year’s end, the pending caseload number falls to 61.

You know, when those newspaper articles came out, I was surprised by the number. Not because of its absolute size, but because it was completely irreconcilable with my own system of tracking the Court’s docket. I spent hours trying to figure out where all these “extra” cases the newspaper seemed to know about were hiding in my database. Needless to say, I never did find them.

One watchdog — using numbers and a methodology it did not explain — calculated the time the court took to dispose of petitions at a few days shy of a year in the 2007 term. The OCA report to the Legislature puts that figure at 158 days — about 40 percent of what the watchdog stated it was.

The “watchdog” numbers, as I understood them, started by picking the cases that would tend to have the longest total times — the cases that ultimately did result in a written opinion on the merits — and then worked backwards to see how long those cases took. By contrast, you’d get a very different perspective if you took the perspective of someone actually filing a petition and asking “How long will my petition take?” The answer is much less time — many petitions are denied after about two months (30 days for a response to be filed; 30 days for the Court to return its internal vote sheets), unless they are among the smallish fraction of cases that move to the briefing on the merits stage. My suspicion is that the OCA number above is a mean of all petitions (including the very short and the very long) and that measuring the median instead would yield an even shorter number still, perhaps around 60 to 75 days.

(Thanks to Texas Appellate Law Blog for noticing Osler’s article)

In the past few days, the Wall Street Journal has run two separate opinion pieces about judicial elections — one from the left and one from the right.

Last weekend, the paper ran an op-ed titled “Justice for Sale” by James Sample, who directs the Brennan Center at NYU and has recently written a book highly critical of judicial elections.

Sample writes that, “Nationwide in 2006, business donors contributed twice as much to state supreme court candidates as attorneys, according to the National Institute on Money in State Politics.” He then criticizes individual state supreme court justices in three States (West Virginia, Wisconsin, and Illinois) in which Justices did not recuse themselves from cases in which they had received large corporate donations. Sample does not point to any problems with this in Texas. (The lack of corporate donations may be a little-appreciated virtue of the Texas system of electing judges.)

Meanwhile, the paper’s editorial board just weighed in with a piece titled “Wisconsin Bar Brawl” that, while focusing on a particular election contest, also seems to give a business point-of-view on the electoral system.

The editorial board describes Justice Butler’s appointment to the court, saying that “Liberals suddenly enjoyed a 5-4 majority on the court, and it swung sharply to the left.” As a result, the paper says, “Also noticing [this shift] were members of the state’s business community, which has proceeded to finance an election challenge to Justice Butler.” (emphasis added)

The editorial board, after praising the business community’s “financ[ing] an election challenge,” then criticizes the incumbent Justice because “the Wisconsin plaintiffs bar is pouring money into the race on his behalf. In the current election cycle, more than $228,000 in contributions have come from the state’s lawyers — more than half of the campaign’s total.”

How to conduct judicial elections in a way that maximizes public trust in the system is a difficult political question that’s worthy of debate in future legislative sessions. These two articles, in just a few days, show the very different perceptions the two sides of the civil litigation bar can have of the very same court. Perhaps unsurprisingly, both sides seem to see the other side’s contributions as corrupting the system. The public probably agrees with at least one side — if not both.

In Texas, meanwhile, it has been aptly observed that the media seems quite concerned that the Justices’ campaign travel schedules may have somewhat slowed the output of opinions. I suspect that the Wisconsin court would trade problems in a heartbeat.

Waller I.S.D. Bond Litigation Draws To a Close, Sort Of

The Houston Chronicle has an article reporting on the Texas Supreme Court’s dismissal on Friday of the remaining petition that involved the Waller I.S.D.’s bond issue [previous coverage here and here]. Here is how the article ends:

His attorney, Ty Clevenger, called Friday’s Supreme Court decision disappointing. Clevenger said he is drafting a motion for emergency relief and a temporary restraining order in federal court.

“I guess it’s going to fall to the federal court to do the state’s job,” he said.

Bond opponents have three other cases pending in state courts, as well as a federal lawsuit, but lawyers on both sides acknowledge those lawsuits are unlikely to cause more delays.

Officials with the state Attorney General’s Office repeatedly have said they won’t sign off on the sale of public securities until all state legal challenges regarding the validity of the election are resolved.

Baylor Touts Amicus Filing in El Paso Hospital Case

Baylor has issued a press release crediting Professor Ron Beal with influencing the Texas Supreme Court’s grant of rehearing in El Paso Hospital District v. Texas Health & Human Services Commission.

Professor Beal has also submitted an amicus brief supporting rehearing in Igal v. Brightstar [previous coverage here], in which the motion for rehearing remains pending.

The Court’s “Wrongful Life” Decision from 2002 in the Boston Newspaper

The Boston Globe has an article titled “When Science Meets the Soul” that includes a brief mention of the Texas Supreme Court’s decision in Miller v. HCA, Inc., No. 01-0079 [opinion here], in which the Court concluded that there was no cause of action under Texas law for a doctor saving the life of an infant (“wrongful life”). (This is a long feature article; search for “Texas” to see the brief mention.)

And the Texarkana Court’s Anonymous-Blogger Case Continues

I had an earlier posting about the Texarkana Court’s recent anonymous-blogger decision, which left open the possibility that the defamation plaintiff might make a better showing in the trial court on remand. The Paris News reports (registration may be required) on a hearing in the case that occurred Wednesday in the district court. The health center still contends that it needs the identity of the blogger to establish its case; the defendants unsurprisingly still claim that the health center has yet to show the requisite harm to overcome a First Amendment objection.