Given this diatribe, it’s refreshing to see that this more reasoned view on the legacy of the late Chief Justice William Rehnquist was also produced by a Harvard Law prof. The money quote follows, which the writer’s colleague would do well to consider:

There is something charmingly modest, and deeply conservative, about that vision of law and governance. Conservatives have long believed that human nature disposes us to arrogance, that we’re not as smart and not nearly as farsighted as we think we are. The world is a terribly complicated place. If I think I’ve figured it out, I’m bound to be wrong, maybe disastrously so. Those who run things should not be enforcing some ideological orthodoxy but muddling along — looking for targets of opportunity, picking up money on the table, testing their intuitions against those of others. It’s not a grand vision of how the Supreme Court or the White House should work. But perhaps all those grand visions — there is no shortage of them — will lead us to very bad places.

Harvard Law prof Alan Dershowitz — who certainly does not shy away from defending difficult positions — displays that capacity again in this tirade toward the late and not-yet-buried Chief Justice William Rehnquist.
Professor Dershowitz is a reflection of the fact that intelligence does not equate with good judgment.

Showing my usual lack of prognostication ability with regard to Supreme Court appointments, President Bush this morning nominated the late Chief Justice William Rehnquist‘s former clerk John Roberts to replace Mr. Rehnquist as the Chief Justice of the United States Supreme Court.
Inasmuch as the nomination of Judge Roberts for Chief Justice requires another nomination by the President, the confirmation hearing on the prior nomination of Judge Roberts — which was supposed to commence tomorrow — will be delayed for a couple of weeks.

Chief Justice William H. Rehnquist‘s death Saturday night creates a second vacancy on the Supreme Court and raises the stakes in what will likely be an intense political battle over the Supreme Court’s future.
Over the next days and weeks, many Supreme Court commentators more knowledgeable than I will place Chief Justice Rehnquist’s judicial career in perspective (four good previous ones are here, here, here and here), so I will pass along the best of those commentaries. However, one thing is clear at this point: Chief Justice Rehnquist will be remembered — along with John Marshall and Earl Warren — as one of the Supreme Court’s three most influential Chief Justices.
Chief Justice Rehnquist’s death comes less than a month before his 81st birthday, only three months after the retirement of Justice Sandra Day O’Connor and just days before hearings on a former clerk of Justice Rehnquist, John Roberts, who President Bush nominated to replace Justice O’Connor. Judge Roberts confirmation hearing is currently scheduled to open Tuesday, but it likely will be delayed as a result of Justice Rehnquist’s death.

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Several friends and fellow bloggers have asked over the past several days how the New Orleans-based Fifth Circuit Court of Appeals (website currently down) is dealing with the destruction that has resulted from Hurricane Katrina, so I made a couple of calls yesterday to determine the Court’s status and pass along the following information.
The Court will probably relocate on a temporary basis to Houston, where two of the Court’s most prominent members — Chief Judge Carolyn Dineen King and Edith H. Jones — make their homes and maintain offices. Thankfully, of the Court’s 15 judges, only three of them live in New Orleans — Jacques Wiener, James Dennis and Edith Brown Clement — and each of them has been relocated and are safe.
For now, Judge King’s office in Houston is serving as the court’s unofficial clerk’s office and is coordinating emergency matters in pending cases, such as death penalty stays. The Court has not yet determined when it will resume regular operations, so filing deadlines have been extended and appellate attorneys are instructed not to send any filings to the New Orleans courthouse. Further instructions regarding emergency Court matters can be found here for the time being, and then at the Fifth Circuit’s website when it is back up and running, which is expected soon.
The Fifth Circuit has had in place contingency plans for a Katrina-type disaster for some time, so the Court is currently proceeding according to that plan. As the storm approached New Orleans over this past weekend, court staff started moving some files from the first floor to the second floor in anticipation of flooding. On Saturday, the court cancelled its oral argument schedule for this week and ordered staff to evacuate the city. Most of the Court’s recent documents are digitized and stored on computer, which are backed up daily and stored on servers located in Baton Rouge and Shreveport, so the Court’s current cases should not be adversely affected to any large degree.
I will post periodic updates on the Fifth Circuit’s operations as more information becomes available over the next several days.

Let’s see if we can keep this all straight.
David Boies — who champions himself as an advocate of honest corporate governance — was Tyco’s outside counsel in connection with investigating corporate fraud by Tyco management, and one of the prosecution’s main witnesses in the corporate fraud trial against former Tyco executives Dennis Kozlowski and Mark Swartz.
On the other hand, Mr. Boies is one of the members of Maurice “Hank” Greenberg’s defense team in connection with defending Mr. Greenberg from Eliot Spitzer’s allegations that Mr. Greenberg perpetrated fraud at AIG.
In the meantime, Mr. Boies just resigned as special counsel for Adelphia for violating the Bankruptcy Code and Rules by failing to disclose to the Adelphia Bankruptcy Court that members of his family indirectly own a substantial interest in a document management services company that did between $5 and $10 million of business with Adelphia. Apparently, other clients of Mr. Boies’ firm also have paid substantial sums to the document management company without knowing of the affiliation to Mr. Boies’ family members.
This Wall Street Journal ($) article has more, as does Larry Ribstein.

Following on this post from last week, Yale Law School Constitutional Law professor Jack Balkin (of the popular Balkinization blog) pens this Slate op-ed in which he makes the case against originalism and in favor of the “living Constitution” approach to interpreting the U.S. Constitution. He notes:

Nobody, and I mean nobody, whether Democrat or Republican, really wants to live under the Constitution according to the original understanding once they truly understand what that entails. Calls for a return to the framers’ understandings are a political slogan, not a serious theory of constitutional decision-making.

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The jury verdict in the Merck/Vioxx trial generated a good bit of debate about tort reform, and one of the common topics in that discussion is the effect that contingent fees have on the civil justice system. Contracting for a contingent fee is a way in which a plaintiff can hedge the cost of a lawsuit by shifting a portion of the risk of loss to an attorney. Many tort reformers propose to do away with — or at least severely restrict — contingent fees on the premise that they inevitably lead to increased frivolous litigation.
Along those lines, Ted Frank passes along this interesting AEI project from Alex Tabarrok (of Marginal Revolution fame) and Eric Helland in which they review the results of their study on the probable effects of limiting contingent fees. In short, they question whether the purported benefit of capping contingent fees merits the extreme measure of limiting the contractual right of a plaintiff to contract for a contingent fee:

If America is a “lawsuit hell,” then contingent-fee lawyers are often considered its devils. Contingent fees have been called unwarranted and the lawyers who accept them have been denounced as unethical and uncivilized. Furthermore, in the midst of increased filings and escalating awards, it is difficult not to notice that some plaintiffs’ lawyers have become very rich. As a result, tort reformers have called for limits on contingent fees and many states have obliged. But limits have been enacted without any evidence that contingent fees were either responsible for the liability crisis or that limiting them would produce benefits.

This study, one of the first empirical examinations of contingent-fee limits, finds that contingent fees benefit plaintiffs and do not cause higher awards. Furthermore, contingent-fee limits are unlikely to reduce lawyers’ income very much, since they will simply switch to hourly fees. Since hourly fee lawyers are willing to take more cases to court than contingent-fee lawyers, contingent-fee limits can increase the number of low-value “junk suits.”

Tort reform is an important goal, but limiting the contractual rights of plaintiffs and their lawyers is an unattractive and likely ineffective method of achieving that goal.

The Chronicle is reporting this morning that 39 year-old Don Willett, an Austin attorney with close ties to President Bush, will be nominated today by Governor Rick Perry to replace Priscilla Owen on the Texas Supreme Court.
Mr. Willett is a native Texan who graduated from Baylor University and received a JD with honors and an AM in Political Science from Duke University in 1992. After law school, Mr. Willett clerked for Judge Jerre S. Williams of the U.S. Court of Appeals for the Fifth Circuit and then worked in employment law at the Austin office of Haynes & Boone for several years.
From 1996-2000, Mr. Willett served as Research/Special Projects Director for then-Governor Bush in Texas and advised Mr. Bush on various political and legal issues. He parlayed that position into a Domestic Policy & Special Projects Advisor position on the Bush-Cheney 2000 Presidential Campaign and then later on the Presidential Transition Team. In 2002, Mr. Willett was appointed as Deputy Assistant Attorney General in the Office of Legal Policy where he developed civil and criminal justice initiatives and special projects for the President, including coordinating assistance with judicial nominations and confirmations. After that stint, Mr. Willett served as Special Assistant to the President and Director of Law and Policy for the White House Office of Faith-Based & Community Initiatives and, most recently, as a key advisor for his old friend, Texas Attorney General Greg Abbott.
After nomination, Mr. Willett could serve on the Supreme Court without Senate confirmation until the Legislature is called into session, but he would still have to run for election to the seat next year.

One of the more interesting (and longstanding) local civil lawsuits turned an interesting corner yesterday.
U.S. District Judge Lynn Hughes — unquestionably the Houston federal judge most likely to challenge the government’s position in any case — handed down this 133 page broadside yesterday ordering the Federal Deposit Insurance Corp. to pay Houston financier and longtime environmentalist target Charles Hurwitz $72.3 million in sanctions for the FDIC’s conduct in connection with prosecuting a civil lawsuit to hold Mr. Hurwitz and other directors of the defunct United Savings of Texas personally responsible for $250 million in connection with the $1.6 billion loss resulting from the S&L’s 1988 failure.
There is a lot of background to this saga. The FDIC sued Mr. Hurwitz — the chairman and chief executive of Houston-based Maxxam Inc. — and other United Savings directors (including the talented Barry Munitz) in 1995. Interestingly, the FDIC did not contend in the lawsuit that Mr. Hurwitz and Maxxam had looted United Savings; rather, the agency contended merely that Mr. Hurwitz and Maxxam had an obligation to invest more money in the sinking ship of United even after it was clear that the S&L was going down the tubes.

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