Fictional Attorney of the Month: Judge Thatcher

Mark Twain's most memorable characters in The Adventures of Huckleberry Finn and The Adventures of Tom Sawyer are usually the children. But Judge Thatcher, Becky's father, serves as an important part of Huck's life.

Early in Huck Finn, Huck decides to hand his fortune over to Judge Thatcher to keep it away from his father. At first the judge is confused, but finally concludes that Huck should hand it over "for a consideration"--one dollar. When Huck's father arrives, "His lawyer said he reckoned he would win his lawsuit and get the money, if they ever got started on the trial; but then there was ways to put it off a long time, and Judge Thatcher knowed how to do it."

It may be that Judge Thatcher isn't a very good lawyer--a contract exchanging $6000 for $1 probably wouldn't last, and his best litigation tactic seems to be delay. But his responsibility for and affection toward Huck make him this month's Fictional Attorney of the Month.

Amicus briefs in support of appellants in Evenwel v. Abbott

Last week, amicus briefs in support of appellants in Evenwel v. Abbott were due. The following parties submitted briefs. I'll add the PDFs of each as I can find them (from counsel).

American Civil Rights Union

Eagle Forum Education & Legal Defense Fund, Inc.

Project 21

Tennessee State Legislators and The Judicial Education Project

Cato Institute and Reason Foundation

Mountain States Legal Foundation

Demographers Peter A. Morrison, et al.

Center for Constitutional Jurisprudence

Immigration Reform Law Institute

Judicial Watch, Inc., et al.

City of Yakima, Washington

Magistrate judge approves accommodated LSAT taker consent decree

Last year I discussed a settlement over accommodated LSAT takers, and I emphasized later that such a settlement would likely lessen the predictive value of the LSAT. Despite subsequent objections from LSAC, a federal magistrate judge has just largely approved (PDF) all of the terms of the consent decree.

Arizona appeals court reverses conviction of voter who voted in both Colorado and Arizona in 2010

Arizona law prohibits any voter from "knowingly vot[ing] more than once at any election." Ariz. Rev. Stat. § 16-1016(2). Carol Hannah sent a mail-in ballot in Colorado for the Colorado elections, and she subsequently voted in person in the Arizona general election held November 2, 2010. She was found guilty at a jury trial.

On appeal, in State v. Hannah, 2015 WL 4538536 (Ariz. Ct. Ap. July 28, 2015), the court noted that this was not prohibited by the statute, even though the elections were held on a single day pursuant to federal law:

The State argues the Arizona and Colorado elections held on November 2, 2010 were part of one election, relying on congressional regulations that designate a specific day to select candidates for Congress and the President in a singular, regular election. See 2 U.S.C. § 1 (setting the day for “the regular election held in any State” to choose Senators); 2 U.S.C. § 7 (establishing “the day for the election” of Representatives and Delegates to Congress); 3 U.S.C. § 1 (setting date for “every election” of President and Vice President).

We recognize the elections held on the first Tuesday following the first Monday of November in every even-numbered year are sometimes referred to as “national elections” because they, collectively, include the selection of all the members of the House of Representatives and one-third of the members of the Senate. However, these state elections are held on the same day as a matter of administrative and practical convenience in an attempt "'to remedy more than one evil arising from the election of members of Congress occurring at different times in the different States.'" Foster v. Love, 522 U.S. 67, 73 (1997) (quoting Ex parte Yarbrough, 110 U.S. 651, 661 (1884)). But, within that singular time constraint, each state conducts a separate election for the selection of its Senators and Representatives as constitutionally provided. See U.S. Const. art. I, § 4, cl. 1 (reserving to the states the authority to prescribe the time, place, and manner of holding elections for its Senators and Representatives); United States v. Classic, 313 U.S. 299, 311 (1941) (stating that under the Elections Clause, “the states are given, and in fact exercise wide discretion in the formulation of a system for the choice by the people of representatives in Congress”).

Thus, the elections held in Arizona and Colorado on November 2, 2010, although occurring on the same day, were separate and discrete elections, held in two different states. While the evidence is sufficient to permit a finding that Hannah cast a ballot in both Arizona and Colorado on November 2, 2010, the evidence is insufficient to show Hannah voted “more than once in any election,” such that her vote received more weight than that of any other citizen, where there is no evidence that any candidate appeared on both ballots and 2010 was not a presidential election year. The evidence is therefore insufficient to support a conviction for illegal voting in violation of A.R.S. § 16–1016(2), and we reverse the conviction.

Of note, however, is that other problems may exist with Hannah's decision to vote in two states:

Although we reverse Hannah's conviction, we do not mean to imply that voting in elections held in two separate states on the same date is otherwise proper or lawful. Such conduct raises serious questions regarding whether Hannah was a qualified voter in both Arizona and Colorado in November 2010. However, the State does not dispute Hannah was qualified to vote in the Arizona election, and Hannah was not charged with casting a vote while not qualified to do so. See A.R.S. § 16–1016(1) (“A person is guilty of a class 5 felony who ... [n]ot being entitled to vote, knowingly votes.”). Whether Hannah was qualified to cast a ballot in the Colorado election is a matter for Colorado to address in the interpretation and application of its own law. We likewise express no opinion as to whether Hannah's conduct constitutes a violation of federal law. See, e.g., 52 U.S.C. § 10307(e) (prohibiting voting more than once in a federal election).

It's an interesting little statutory interpretation question with a constitutional dimension, and it invites scrutiny and more careful drafting of other kinds of double-voting laws in an age where early voting is increasingly widespread.

Where are they now? Supreme Court clerks, OT2005

Following up on posts on a ten-year retrospective on the Supreme Court clerks from October Term 2003 and October Term 2004, here's what the clerks from October Term 2005 are doing. This list is probably unreliable and has not been fact-checked in any way, except for the links provided (and these links often aren't the best source material). Note that Chief Justice William Rehnquist passed away at the beginning of the term and was replaced by Chief Justice John Roberts, and clerks for both are designated under the Roberts clerks. Also note that Justice Samuel Alito replaced Justice Sandra Day O'Connor in the middle of the term, and I did the best I could breaking down their clerks.

Chief Justice John G. Roberts

Daniel P. Kearney, Jr. (Yale 2004 / J. Roberts (D.C. Cir.)), counsel at WilmerHale

Mark W. Mosier (Chicago 2004 / Rehnquist / Tacha), partner at Covington

Ann E. O'Connell (George Washington 2004 / Rehnquist / Magill), assistant to the Solicitor General, DOJ

Michael S. Passaportis (Virginia 2004 / Rehnquist / Wilkinson), unknown

Kosta Stojilkovic (Virginia 2004 / J. Roberts (D.C. Cir.)), AUSA, E.D. Va.

Justice John Paul Stevens

Jean Galbraith (Berkeley 2004 / Tatel), professor at Penn

Daniel J. Lenerz (Stanford 2002 / S. Williams / Thompson (M.D. Ala.)), civil division, appellate staff, DOJ

Sarah Eddy McCallum (Georgetown 2002 / Walker (2d Cir.) / Rakoff), AUSA, S.D.N.Y.

Samuel Spital (Harvard 2004 / H. Edwards), partner at Holland & Knight

Justice Sandra Day O'Connor

Tali Farhadian Weinstein (Yale 2003 / Garland), AUSA, E.D.N.Y.*

Benjamin J. Horwich (Stanford 2003 / Becker / V. Walker (N.D. Cal.)), attorney at Munger Tolles**

Amy N. Kapczynski (Yale 2003 / Calabresi), professor at Yale

Sasha Volokh (Harvard 2004 / Kozinski), professor at Emory**

*Also clerked for previous term with Justice O'Connor.

**Also clerked for Justice Alito upon his confirmation.

Justice Antonin Scalia

John C. Demers (Harvard 1999 / O'Scannlain), VP & assistant GC, Boeing

Scott P. Martin (Columbia 2004 / Kozinski), partner at Gibson Dunn

D. John Sauer (Harvard 2004 / Luttig), partner at Clark & Sauer

Evan A. Young (Yale 2004 / Wilkinson), partner at Baker Botts

Justice Anthony Kennedy

David M. Cooper (Stanford 2004 / J. Roberts (D.C. Cir.)), counsel at Quinn Emanuel

Randy J. Kozel (Harvard 2004 / Kozinski), professor at Notre Dame

Jeffrey A. Pojanowski (Harvard 2004 / J. Roberts (D.C. Cir.)), professor at Notre Dame

Zachary S. Price (Harvard 2003 / Tatel / Blake (D. Md.)), professor at Hastings

Justice David H. Souter

Jeanne C. Fromer (Harvard 2002 / Sack), professor at NYU

Meaghan McLaine VerGow (Harvard 2004 / Garland), counsel at O'Melveny

Jon D. Michaels (Yale 2003 / Calabresi), professor at UCLA

Allison Orr Larsen (Virginia 2004 / Wilkinson), professor at William & Mary

Justice Clarence Thomas

Chantel Febus (George Washington 2002 / E. Jones / Lamberth (D.D.C.)), counsel at Proskauer

James C. Ho (Chicago 1999 / J. Smith (5th Cir.)), partner at Gibson Dunn

John M. Hughes (Chicago 2004 / Luttig), partner at Bartlit Beck

Ashley E. Johnson (Vanderbilt 2004 / Luttig), counsel at Gibson Dunn

Justice Ruth Bader Ginsburg

Lori Alvino McGill (Columbia 2003 / Tatel), partner at Quinn Emanuel

Joshua Civin (Yale 2003 / Reinhardt), counsel,  Montgomery County Public Schools

Rebecca Deutsch (Yale 2002 / Katzmann / Rakoff (S.D.N.Y.)), assistant general counsel for law and policy, Consumer Financial Protection Bureau

Anna-Rose Mathieson (Michigan 2003 / Boudin), partner at California Appellate Law Group

Justice Stephen Breyer

Danielle Gray (Harvard 2003 / Garland), partner at O'Melveny

Kathryn E. Judge (Stanford 2004 / Posner), professor at Columbia

Jonathan Kravis (Yale 2004 / Garland), AUSA, D.D.C.

John H. Longwell (Georgia 1999 / D. Ginsburg / V. Walker (N.D. Cal.)), counsel, ING

Justice Samuel Alito

Adam G. Ciongoli (Georgetown 1995 / Tatel / Bea), counsel, Campbell Soup Company

Horwich (from O'Connor)

Hannah Clayson Smith (BYU 2001 / Thomas (S. Ct.) / Alito (3d Cir.)), counsel, The Becket Fund for Religious Liberty

Volokh (from O'Connor)

A few thoughts:

The law professor drought is over! Well, last year, I wondered about a sharp drop-off in academic placements, from 14 for OT2003 to just 3 for OT2004. They're back! Nine are teaching at top flight law schools.

Who needs to become a partner? I count 6 former clerks working at law firms in an attorney or counsel role rather than as partner.

Otherwise, it's the usual mix of government or public interest lawyers, private practitioners, and academics one might otherwise expect.

Fictional Attorney of the Month: Rudy Baylor

In 1997, Francis Ford Coppola directed a cinematic version of John Grisham's novel, The Rainmaker. The all-star cast is led by Matt Damon as Rudy Baylor, a newly minted lawyer from Memphis who escaped a life of poverty and lands the case of a lifetime.

Rudy takes a job as an ambulance chaser--literally visiting victims in the hospital to try to get clients--before running into Deck Shifflet, played by Danny DeVito. Rudy finds an insurance case involving Donny Ray, a 22-year-old dying of leukemia whose claims had been denied. Deck helps him out, and the two take on a powerful insurance company and its suite of attorneys.

The film has a number of roles and smaller story lines that slowly intertwine in Rudy's development. It offers not simply a very realistic look at the hard life of a novice plaintiff's attorney scrapping for fringe cases and confronting a powerful and slippery defense team, but also the ethical and moral questions that a new attorney confronts in his own life and in the practice of law generally. It is not exactly an uplifting film for the young lawyer. But Rudy's tenacity, skill, and introspection are worth of thoughtful examination.

California bar votes to cut exam from three days to two

In March, I covered the news that the California bar was considering cutting the length of the bar exam from three days to two. Today, Above the Law reports that the bar's board of trustees has unanimously approved the change, which should take effect July 2017.

The proposal (PDF) called for five one-hour essay questions and a 90-minute performance test on one day, and the 200-question multistate bar exam (MBE) on another day. The essays and the multiple choice component would each receive half the weight in the final score.

This post has been updated.

Fictional Attorney of the Month: The King of Hearts

Alice's Adventures in Wonderland tells of a rather silly kingdom. And Alice observes the trial of the Knave of Hearts.

She easily identifies the King of Hearts as the judge "because of his great wig." She watches jurors writing their names in the event they forget them before the end of the trial.

As the trial begins, the judge/king accuses the Knave of Hearts of stealing the queen's tarts. But the King of Hearts has little sense in running a trial.

"Consider your verdict," the King said to the jury.

"Not yet, not yet!" the Rabbit hastily interrupted. "There's a great deal to come before that!"

"Call the first witness," said the King; and the White Rabbit blew three blasts on the trumpet, and called out, "First witness!"

At one point, the King of Hearts warns the Hatter to give his evidence or face execution on the spot, or that the Hatter must remember evidence or be executed. Certainly an intemperate judge. And then, as judge, he cross-examines a witness on the contents of the tarts, only to complain to the Queen, "Really, my dear, you must cross-examine the next witness. It quite makes my forehead ache!" And when Alice takes the stand (by now, a giantess), the king cites "Rule Forty-two. All persons more than a mile high to leave the court," which he claims is the oldest rule in the book, until Alice remarks that it ought to be numbered one if that were the case.

An executive acting as judge? This month's Fictional Attorney of the Month.