READ THAT BACK: Surprise Grants and Hotel Speech Questions


Apocryphally, just before Hurricane Katrina hit New Orleans in 2005, some clubs wound down their operations by playing “Walking on Sunshine,” by the prophetically-named Katrina and the Waves. Given the devastation, in retrospect, it might be seen as a little flip. It is probably for the best that there isn’t—to the Court Reporter’s knowledge—a similarly too-on-point band/song combination associated with the name Harvey. Best of luck to all those affected.

Surprise, Surprise!: A good friend once told the Court Reporter a joke: How many Oxford dons does it take to change a lightbulb? Answer: CHANGE!?!? In many ways the joke could refer to the Supreme Court, too, which tends to have its routines and traditions and doesn’t tend to stray from them. And yet last week they did, with a surprise cert. grant. The case involves a circuit split over how attorneys’ fees are paid out of awards to prisoners who win civil rights cases. Sure, circuit splits are important, but what’s so important about this case that the justices interrupted their vacations to grant it? The Supreme Court twitterati guesses that the court is trying to fill out its fall calendar, which has plenty of room for more arguments. 

Speech and Debate: Justice Neil M. Gorsuch will give a speech at a Trump hotel next month, and some are saying—in print and in audio—that it raises ethical questions. We may have just witnessed convergent evolution in headlines. And speaking of Gorsuch: The administration’s recent … troubles … have gotten even some conservative jurists wondering if Gorsuch’s appointment to the high court has been worth it. (For the record, the Court Reporter disagrees with Sir Thomas More, thinks Wales is lovely, and highly recommends it.)

Prison Break: The prisoner re-offense rate is incredibly high, and so are some of the barriers to employment for former prisoners—stigma, licensing requirements, and background checks all complicate matters. Someone in Silicon Valley had the bright idea that maybe these two things are related; we can’t all just Monsieur Madeleine our way out of a felony history. So here’s a thought: Let’s train prisoners in software coding. So far the system doesn’t seem to have many bugs. The Court Reporter was torn between references to Wentworth Miller and Johnny Cash, so there’s one of each. You’re welcome.

Mind the Gap: The commonly cited numbers for the gender wage gap are awful enough—but they have nothing on the gender gap for expert witnesses. Females are only 17% of expert witnesses, and are paid on average 40% less. Even female nursing experts are paid less than their male counterparts, which supply-and-demand would suggest is nonsense. Are attorneys subconsciously biased? Are they afraid that female expert witnesses won’t impress a jury? 

Murphy’s Law: Judge Harold Murphy took senior status this year after more than 40 years on the federal bench. A 1991 decision aiming at rooting out the vestiges of de jure segregation in higher education in Alabama may be his most memorable opinion. (The Court Reporter may be the only person who remembers the existence of the apparently single-season TV show Murphy’s Law; the theme song was…not one of the strongest of the era.)

ICYMI:


• You’ve heard of the Red Scare, but what about the Lavender Scare? The Mattachine Society is hoping—with some BigLaw help—to preserve that history.

• The Innocence Project of Pennsylvania has freed seven innocent people from prison since 2009. Seven people in eight years isn’t a lot, but seven innocent people in prison is seven innocent people too many.

• One judge was unimpressed with claims that labels of unrefrigerated, shelf-stable “100 percent grated Parmesan cheese” were misleading, because, honestly. You’re welcome (again!) for the Taylor Swift earworm that headline will give you.

• Should Alphabet Inc. lose its trademark in Google because it has become a generic term? LMGTFY.

And Now … A Stitch in Time: There has been talk for a while about the Ninth Circuit, and whether it might not be better off split up. These discussions have gained some steam recently, as Senator Jeff Flake (R-Ariz.) hosted a Senate subcommittee hearing on the issue in Phoenix, where four judges gave testimony. I like how coy Flake—who is up for re-election this year—plays it with the title of the hearing, which in no way gives away his opinion on the matter. Senator Dianne Feinstein (D-Calif.), perhaps unsurprisingly, opposes breaking up the circuit. There is some surface appeal to the idea—after all, the circuit covers such disparate locations as Hawaii and Alaska, Arizona and Montana, coastal California and non-coastal California. But perhaps political and geographical diversity is in fact a reason to keep them together. And popular imagination suggests that the Ninth Circuit is reversed too often—which doesn’t appear to be true, and even if it were, it would be a reason to also break up a number of other circuits (looking at you, Federal) and do away with state supreme courts just in general. But that would probably be less popular.

*Programming Note: There will be no Read That Back next week. Even Court Reporters need a vacation occasionally! Also it’s a national holiday, so go celebrate labor. RTB will return as regularly scheduled on Sept. 11.