Judges pretending to be Jesus.

As Easter dawns, young children will get up and search for candy.  Legally-minded people may ponder the question, can a Wisconsin state court judge play the role of Jesus in a living version of Da Vinci's The Last Supper. One can be forgiven for being surprised to learn that the Wisconsin Supreme Court Judicial Conduct Advisory Committee has answered this question.

Must have been quite a deposition.

Speaking of churning the bill, Pointoflaw.com has a post about a case where "one attorney billed 239 hours and over $90,000 to summarize a one-day deposition transcript of under 400 pages."  If the deposition were actually 24 hours-and I suspect that the deposition was probably less than half that amount of time-then the attorney spent nearly 10 hours summarizing each hour of the deposition.  Blaise Pascal wrote about how it took longer to write a short letter than a long one.  Apparently that is also true for deposition summaries.

Laughing at gay marriage

As we did with the Obamacare oral arguments, the Gillette-Torvik blog has the final tally on who got the most laughs during the two days of Supreme Court oral argument on the same-sex marriage cases.

An Inexcusable Effort At Humor?

Reader(s)™ who follow the legal news have probably heard about the infamous email unearthed in a fee dispute involving mega-firm DLA Piper. In short, some guy owes DLA Piper a bunch of fees, and when they sued him he countersued alleging over-billing, etc. (Protip: don't sue your clients.) Among the docs produced is an email from one grunt associate to another which contains the words "churn that bill, baby!" To churn, in Biglaw-speak, is to make work, or overstaff. In other words, to over-bill.

In context, the quote isn't quite as bad. It's not a direction from a partner to an associate to churn. It's rather some bullshitting between two powerless grunts about the behavior of a another lawyer (a partner, I believe) who had a reputation for running up big numbers. It is the kind of thing one grunt associate has said to another grunt associate a billion times at sweat shops like DLA Piper. Most of those grunts are smart enough not to put it in writing, though.

DLA Piper has responded to press coverage of the email with a statement that the email was an "inexcusable effort at humor." As mentioned, I think it's likely correct that the comment was said in jest, at least partially. But was it an "inexcusable" effort?

Well, some people say there are no dumb questions. I say there are no inexcusable efforts at humor, especially when you are toiling away at a two-million-lawyer law firm that I always thought was an accounting firm. But you have to know your media. Irreverence has a place in the law. Does it ever! But usually its place starts in the larynx and spews out through the mouth. What I'm saying is: don't write that shit down, bro.*

*Disclaimer notwithstanding, consider that some free all-purpose legal advice.

Congratulations to David Lillehaug

In breaking news, Minnesota Governor Mark Dayton did not name Mr. Torvik to the Minnesota Supreme Court.  Instead, David Lillehaug will replace retiring justice Paul Anderson.  Unconfirmed sources report that Mr. Torvik's candidacy was scuttled by the fact that he did not apply for the job and also lives in Illinois.

Restraining Procreative Activity

I've spent some time scanning the transcript of the Supreme Court oral arguments in the Prop 8 same-sex marriage case. I thought one exchange in particular went very poorly for the opponents of same-sex marriage.

The key for defenders of "traditional marriage" is to come up with a rational basis for restricting marriage to one man and one woman. The general argument that opponents of same-sex marriage make is that the state has a rational basis in promoting marriage as an institution devoted to procreative activity. Since only a man and a woman can procreate, the argument goes, this provides a rational basis for restricting marriage to one man and one woman (at a time).

An obvious rejoinder is: what about infertile couples? Could the state prohibit infertile couples from marrying? Obviously not, but perhaps that can be distinguished on privacy grounds. So Justice Kagan put forth a more subtle hypothetical: could the state prohibit marriage between couples over 55 years old?

[Funny this should come up, given this recent post by Mr. Gillete.]

The lawyer arguing against same-sex marriage admitted such a law would be unconstitutional, but tried to distinguish that situation from same-sex marriage. First, he argued that almost all men are fertile until their dying day, so it's very unlikely that both parties to the over-55 marriage would be infertile. Second, he argued that marriage not only encourages procreation, but discourages reckless procreation:

Your Honor, society's interest in responsible procreation isn't just with respect to the procreative capacities of the couple itself. The marital norm, which imposes the obligations of fidelity and monogamy, Your Honor, advances the interests in responsible procreation by making it more likely that neither party, including the fertile party to that .. 

[interruption, followed up later with:] 

[Marriage is] designed, Your Honor, to make it less likely that either party to that -- to that marriage will engage in irresponsible procreative conduct outside of that marriage. 

So the idea is, it seems, that marriage has a purpose even when the woman is no longer fertile because the marriage norms of fidelity and monogamy discourage "irresponsible procreative conduct outside of that marriage" by the still-fertile male spouse.

But why isn't this an argument for same-sex marriage? Gays and lesbians are of course just as fertile as heterosexuals, and they do have children. If the institution of marriage is essentially about norms of monogamy and fidelity, which are enforced to prevent irresponsible procreative conduct, why wouldn't allowing gays and lesbians to marry be just as likely to prevent irresponsible procreative conduct?

Indeed, many gays and lesbians get married to members of the opposite sex and have children with them, only to have those marriages break apart when it is discovered that the marriage is based on a fundamental lie. Allowing same-sex marriage would seem to make this less likely, and thus promote this supposedly essential function of marriage.

There He Goes Again ...

Once again, Justice Scalia is using his supposed "originalism" method of interpretation to achieve his preferred political ends. Today's example is Florida v. Jardines. The question in the case was whether a police dog sniffing at your door for evidence of narcotics constitutes a "search" under the Fourth Amendment. Writing for a five-justice majority, Justice Scalia held that it is indeed a search, and thus subject to the restrictions of the Fourth Amendment. The result in this specific case is that all evidence obtained pursuant to a subsequent search warrant will be suppressed, a conviction will be impossible, and a dope fiend will be loosed upon the streets. Just how Justice Scalia likes it.

I kid, of course. In fact, this is another in a long line of cases under the Fourth Amendment where Justice Scalia has arrived at conventionally "liberal" results. Perhaps Scalia is using these Fourth Amendment cases as cover for other cases, as part of long con that allows him to credibly use originalism as a crutch to support nakedly partisan results in First Amendment (corporate speech, establishment clause, etc), Second Amendment, federalism and other cases.

But I'd urge the cynics inclined to believe such claptrap to search within, instead, and consider how to counter the Justice Scalia who actually exists rather than the monster you've created in your heads.

Line by proxy

When I first read that people were already in line to hear the Supreme Court oral argument about same sex marriage, I thought that some hardcore law fans were camped outside the Supreme Court.  However, as the New York Times makes clear, at least some of the people in line are not interested in the case.  Intead, those folks are proxies hired by companies that pay people to stand in line.  Mr. Torvik and I have missed out on yet another business opportunity.

Children of civil war veterans live amongst us.

The AP did a story about how the costs of war can linger on.   You can read it here.  As we celebrate the 150th anniversary of the Civil War, I was surprised to see that the government pays $876 per year in survivor benefits to two disabled children of Civil War Veterans. 

Rivalries and rankings

As March Madness descends upon the land, the folks at Extra Mustard have ranked the "coolest person" at all 68 schools playing in the NCAA mens' basketball tournament.  Mr. Torvik and I were left off the list.  The University of Minnesota's coolest person is Ron Pearlman.  Some might find the selection odd given that Bob Dylan attended there.  Or some might find the selection of Mr. Pearlman odd given that Iowa's State's coolest alum is George Washington Carver.  If scientists are cool, then it is hard to see how the coolest person to attend the University of Minnesota is someone other than Norman Borlaug. 

David Boies makes a prediction

Mr. Boies has not argued the case for legalizing gay marriage to the United States Supreme Court yet but he is already predicting how the Supreme Court will rule on the issue.  Mr. Boies tells USA Today that he will win the appeal and get the support of more than 5 justices.  Mr. Boies declined to say he would get the support of more than 6.  I guess we should give Mr. Boies credit for not basing his prediction on the questions at oral argument.

Does prison make it impossible for a criminal to be rehabilitated?

AmLaw Daily has the story of how Scott Saks, a partner in the corporate department of the Paul Hastings law firm, opposes the parole of Terry Losicco.  Mr. Saks lives in the house where Mr. Losicco brutally murdered a woman in 1980.  Mr. Losicco was 16 at the time.  Mr. Saks did not know of the murder when he bought the house from a subsequent owner but says he still would have bought the house if had known.  This post is not about the coincidence that Mr. Saks bought a house where a murder took place.  It is about Mr. Saks's reason for opposing parole.

No Pope Torvik for now.

The Roman Catholic Church has a new pope and it is not Mr. Torvik.  Instead, the Conclave of Cardinals went with Cardinal Jorge Mario Bergoglio of Argentina.  According to Slate, Cardinal Bergoglio (who adopted the name Francis I) is the first pope to: (1) to take the name Francis; (2) be a member of the Jesuits; (3) be from the New World; (4) to have only one lung.

Minnesota and Marriage

Although I am too lazy to check, I don't believe that Mr. Torvik or I posted our opinions on the topic of whether Minnesota should recognized same sex marriage.  To the extent, not doing something counts as a streak, the streak continues today. 

However, I did want to point out that one of Mr. Torvik's favorite professors has a quote and picture in MinnPost's story about testimony that the Minnesota Legislature heard regarding whether to legalize same-sex marriage.  It is a riveting story.  Especially the part about how one former legislator who voted in favor of Minnesota's gay marriage ban testified yesterday that she regrets her vote. 

(Allegedly) Hit them and then sue them

Back in January, we posted about an incident in West Virginia where a lawyer named Stephen Sean Murphy allegedly attacked another lawyer named Scott Radman.  As one might expect in fisticuffs involving lawyers, the lawsuits have started. 

The $217,000 misdemeanor

Back in 2007, America was briefly distracted by the toilet habits of a senator from Idaho.  I am writing, of course, about Senator Larry Craig.  As Fox News points out, Mr. Craig introduced us all to the phrase "wide stance."