On the Record

There’s just too much good law-related stuff out there this morning to tell you all about! Here’s a special, miniature (fun size, if you will) law round-up:

• John Bratt of the Baltimore Injury Lawyer Blog says he’s glad he doesn’t work for Doug Gansler. Bratt noted my colleague Steve Lash’s report that assistant attorney general Brian Kleinbord is the attorney of record for Maryland v. Shatzer, which Gansler argued in the Supreme Court yesterday. “You know what that means?” Bratt writes. “It means that Kleinbord and the other lawyers wrote the briefs and did all the work. Now that it is time for argument, the guy at the top of the letterhead is swooping in to take advantage of all of the attention, and the glory if he wins.”
• The guy who wants the military to combat proselytizing of soldiers and cadets is suing to get a former Navy chaplain to “stop asking Jesus to plunder my fields… seize my assets, kill me and my family then wipe away our descendants for 10 generations.” The former chaplain says he was just quoting Scripture and never incited violence against Mikey Weinstein, though he said he “pray[s] the Psalm that his days are few.”
• This line from The National Law Journal’s account of the opening day of the Supreme Court term yesterday is hilarious: “Justices Breyer and Clarence Thomas spent several minutes during arguments peering at the marble friezes of lawgivers on the walls of the Court high above them, apparently noticing new features they hadn’t seen before from their earlier vantage points.” I really can’t add anything to that.

On the Cover:  Welcome to the first Monday in October! This morning marks the Supreme Court debut of Maryland Attorney General Douglas F. Gansler and Assistant Public Defender Celia Anderson Davis, who will argue over a Hagerstown man’s child sex abuse conviction. The question is whether a request for counsel, years earlier, should have stopped police from questioning the suspect without a lawyer after they obtained additional information. Read the main story, some advice from Gansler’s predecessor, and a preview of the new term.

In the News: The Court of Appeals heard argument in a legal malpractice case that challenges the “case within a case” methodology … the ban on self-represented lawyers claiming attorneys’ fees applies even to bad faith or frivolous actions, the Court of Special Appeals holds … Maryland Legal Services Corp. renews its quest for a higher filing-fee surcharge … Sen. Ben Cardin finds a civil audience for his health-care talk at UB Law… and a former CBS Early Show personality appeals a ruling that knocked out his medical malpractice claim.

Also:

• Paul Tiburzi remembers the time he argued against the D.C. lawyer who went on to become Chief Justice of the United States;
• An Owings Mills man got a $588,000 verdict in his lawsuit against a home-improvement contracting firm, but will also seek to hold the contractor individually liable;
• Read the Week in Review and our Law Digest, this week with cases from the Court of Appeals, the 4th Circuit and the U.S. District Court for Maryland.

Happy Monday! Here are a few law links to start your week off:

•  U.S. Attorney Rod Rosenstein probably isn’t going anywhere, MainJustice.com says. The prediction comes in an article about how a third of the country’s U.S. Attorney’s offices are still run by Bush-appointed prosecutors.
• Page Croyder applauds The Sun for coming down hard on Pat Jessamy’s office.
• Slate reports that female judges tend to be less qualified than male judges by traditional measures (they went to lower-ranked colleges and law schools, had less prestigious clerkships and spent less time in private practice) but are just as good at actually judging.
• Happy opening day of the SCOTUS term! Sandra Day O’Connor says she’s “disappointed” at the changes in the court and feels some of her decisions “are being dismantled.”
• It’s unclear where this video, “The Streetwalking Lawyers of Aurora Avenue,” comes from, and it appears to be old, but it’s new to me and very funny.

Sorry, University of Maryland and University of Baltimore law school students – you don’t have a shot of clerking for U.S. Supreme Court Justice Antonin Scalia.

An ABA Journal story about the composition of current and past clerks at the highest court in the land quotes Scalia telling an American University Washington College of Law student earlier this year she should look elsewhere for a clerkship: 

By and large, I’m going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, OK?

(The real chutzpah of the quote is that Scalia said it on AU’s campus after being invited by the law school.)

For this upcoming term, the Harvards and Yales of the world still dominate the clerkships, although Justice Samuel A. Alito Jr. “caused a stir” by picking a Seton Hall alumnus as his one of his clerks, according to the story. The universities of Georgia and Texas and George Washington University are also represented this term.

One former justice who didn’t automatically gravitate to top-10 law schools was Byron White, who hired ”interesting people,” including a man who worked in a coal mine.

“Look, there are a hundred people a year that could to the job adequately,” the NFL-player-turned-justice told biographer Dennis Hutchinson. “I might as well have someone who’s interesting, and that doesn’t mean the ones that the fancy law profes­sors recommend.”

The Supreme Court posed for a new portrait this morning, allowing the media to photograph them as a group. Listen, I know these folks handle the most important cases in the land and that sternness and gravity are pretty much job requirements. But would it kill them to smile?

I’m going to put aside the fact that they’re all looking in different directions, because there were clearly many cameras in the room. With that in mind, compare for a moment the various versions of today’s SCOTUS portrait with the official photo of Maryland’s Court of Appeals. With one exception (OK, one-and-a-half–Judge Murphy’s got a half-smile), these folks looks pleased as punch to be on the court and sitting/standing for this portrait. Chief Judge Bell looks downright jolly.

By contrast, only Chief Justice Roberts and new Justice Sotomayor (fresh off a few months when she was expected to smile on cue constantly) actually look happy in all the SCOTUS pictures. In one picture, Breyer is smiling, and in another, Scalia is half-smiling, half-smirking. Alito and Thomas look like they’d rather be at the dentist. Overall, the effect is a bunch of people who really hate being on camera. (Of course, they do. They famously don’t allow cameras in the courtroom during oral arguments, while our top court streams arguments live.)

What is it that makes our appellate judges so much happier-looking than those on the high court? My pet theory: it’s harder to glower when you’re wearing a bright red robe with a floppy white tie.

Photo courtesy of USA Today.

Before two federal environmental lawyers talked about recent government victories during Friday’s ABA section meeting, Bruce Gelber discussed a recent government loss in the Supreme Court involving Superfund sites.

In May, the high court ruled Shell Oil Co. was not liable as a party that arranged to dispose of hazardous materials under the Comprehensive Environmental Response, Compensation and Liability Act at a contaminated California site.

Gelber, chief of the Justice Department’s Environmental Enforcement Section, said the ruling will not impact many other Superfund cases due to an “atypical fact pattern, including the contaminant not being waste or byproduct.”

“The rumor of CERCLA’s demise has been greatly exaggerated,” he said. 

 The high court also upheld a ruling that apportioned liability to another company connected to the groundwater contamination. Gelber said the government does not dispute the divisibility rule, only its application here.

The goverment will continue to resist divisibility in Superfund cases where it believes the harm is “not theoretically apportioned,” he said.

Gelber concluded with some advice for the private practice lawyers in the audience.

“Tell your clients to create a paper trail that shows you undertook some steps to show how dangerous it can be to handle your material,” he said.

I’ve been writing this week about the Supreme Court’s June decision in Horne v. Flores, which called into question court oversight of government services. Maryland is now using that decision to argue that a federal district court may not have jurisdiction to continue monitoring Baltimore’s troubled foster care system.

The law professor I spoke to for my Wednesday story came at the issue from a somewhat pro-monitoring standpoint. For a different take, check out this column by two New York Law School professors, who characterize Horne as providing “[r]elief from judicial policy lock-up.”

Thanks to our friends at r2integrated, an online marketing and web design company out of the Emerging Technology Center in Canton, we’re pleased to bring you a social media “smash” page on the confirmation of Sonia Sotomayor.

This is real-time social media coverage from microblogging service Twitter and the photo-sharing site Flickr. Click here - I promise, you won’t be able to look away.

Keep in mind: as the content is coming from Internet users such as yourselves, it’s not pre-screened.

Let us know what you think of this new, emerging technology!

Happy Monday!

• An innocent man from Baltimore has been in prison for more than 25 years, writes Dan Rodricks.
• Should jurors get to ask questions at trial?
• Are you an unemployed attorney? Sue your law school!
• New projections say the legal market has stabilized and will grow 3 percent next year.
• This sounds like a distasteful and offensive way to market your legal services, but does it merit sanctions?
• Slate’s Dahlia Lithwick summarizes each Judiciary Committee member’s vote on Sotomayor–in haiku. Awesome.

Happy Monday! It’s indeed a happy day here at The Daily Record, as we now have phone and Internet access again. (We were down Thursday and Friday, which was somewhat inconvenient.) Now that I’m connected to the world again, I can bring you a few law links to start your day:

•  Ron Miller spars with Ron Miller over tort reform.
•  ”I would have advised Professor Gates and all other suspects not to open the door of their homes to the police without a warrant,” writes Jon Katz.
• Carolyn Elefant writes about why you should “enjoy” and “savor” your bar exam prep.
• Women of color don’t tend to stick around at big law firms, a new study says. Above the Law also points out, citing the ABA Journal, that minority women in a previous study said that, “Many minority women lawyers of the same ethnicity were often addressed with the same name.” Yikes.
• What does Obama’s Sotomayor pick mean for whom he can nominate for future Supreme Court vacancies? (HT: How Appealing.)