t scetus tdy dodd 5 pw f potus dz n xtd to t pips, ogt all pst cgsl xgn q sj is uxl.

Before cracking open your handy desk reference The Code: Basics for Texting and Instant Messaging (which a retired FBI agent calls “a valuable asset to families who are in the dark about what their children are involved with on the internet”), consider that this cryptic message was sent not in the 21st century but early in the 20th. It translates:

The Supreme Court of the United States today decided that the power of the President of the United States does not extend to the Philippines, on the ground that all past Congressional legislation on the subject is unconstitutional.

It’s cited in Douglas Baird’s chapter in Intellectual Property Stories on International News Service v. Associated Press, 248 U.S. 215 (1918).

It should be available in response to all variants of questions like Will text messaging destroy the English language? and Is the use of “texting language” harming job prospects?

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As reported in the Houston Chronicle, Houston criminal defense lawyer Lloyd Oliver has been accused of barratry (i.e. generally, the “vexatious incitement to litigation, esp. by soliciting potential legal clients.” Black’s 8th 2004). According to the Chronicle:

Lloyd Oliver said he befriended a homeless man named Perry Mason, who sells individual cigarettes and bottles of water on the sidewalk outside of the jail at 21 San Jacinto. Oliver said he bought Mason lunch, a pair of shoes and gave him $20 when they first met, a few years ago. Oliver said he also gave him a stack of his business cards and said, “Send me a client sometime.” Since then, Oliver said, Mason has been handing them out and referring people to the lawyer
…..
“Maybe that’s barratry. I’m not sure. I don’t think it is,” Oliver said. “But if you strictly interpret the barratry statute, we’re all guilty of some form of barratry. If I buy you a cup of coffee or give you a pen with my name on it and you refer a client to me, that would be barratry.”

The statute in all its glory appears below. After conducting my own polling of law students and recent grads, I suspect the great majority have no idea what barratry is, much less under what circumstances it could lead to criminal charges or disbarment. Caveat lawyer.

Tex. Penal Code § 38.12. Barratry and Solicitation of Professional Employment

(a) A person commits an offense if, with intent to obtain an economic benefit the person:

(1) knowingly institutes a suit or claim that the person has not been authorized to pursue;

(2) solicits employment, either in person or by telephone, for himself or for another;

(3) pays, gives, or advances or offers to pay, give, or advance to a prospective client money or anything of value to obtain employment as a professional from the prospective client;

(4) pays or gives or offers to pay or give a person money or anything of value to solicit employment;

(5) pays or gives or offers to pay or give a family member of a prospective client money or anything of value to solicit employment; or

(6) accepts or agrees to accept money or anything of value to solicit employment.

(b) A person commits an offense if the person:

(1) knowingly finances the commission of an offense under Subsection (a);

(2) invests funds the person knows or believes are intended to further the commission of an offense under Subsection (a); or

(3) is a professional who knowingly accepts employment within the scope of the person’s license, registration, or certification that results from the solicitation of employment in violation of Subsection (a).

(c) It is an exception to prosecution under Subsection (a) or (b) that the person’s conduct is authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.

(d) A person commits an offense if the person:

(1) is an attorney, chiropractor, physician, surgeon, or private investigator licensed to practice in this state or any person licensed, certified, or registered by a health care regulatory agency of this state; and

(2) with the intent to obtain professional employment for the person or for another, provides or knowingly permits to be provided to an individual who has not sought the person’s employment, legal representation, advice, or care a written communication or a solicitation, including a solicitation in person or by telephone, that:

(A) concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the accident or disaster occurred;

(B) concerns a specific matter and relates to legal representation and the person knows or reasonably should know that the person to whom the communication or solicitation is directed is represented by a lawyer in the matter;

(C) concerns an arrest of or issuance of a summons to the person to whom the communication or solicitation is provided or a relative of that person and that was provided before the 31st day after the date on which the arrest or issuance of the summons occurred;

(D) concerns a lawsuit of any kind, including an action for divorce, in which the person to whom the communication or solicitation is provided is a defendant or a relative of that person, unless the lawsuit in which the person is named as a defendant has been on file for more than 31 days before the date on which the communication or solicitation was provided;

(E) is provided or permitted to be provided by a person who knows or reasonably should know that the injured person or relative of the injured person has indicated a desire not to be contacted by or receive communications or solicitations concerning employment;

(F) involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

(G) contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.

(e) For purposes of Subsection (d)(2)(E), a desire not to be contacted is presumed if an accident report reflects that such an indication has been made by an injured person or that person’s relative.

(f) An offense under Subsection (a) or (b) is a felony of the third degree.

(g) Except as provided by Subsection (h), an offense under Subsection (d) is a Class A misdemeanor.

(h) An offense under Subsection (d) is a felony of the third degree if it is shown on the trial of the offense that the defendant has previously been convicted under Subsection (d).

(i) Final conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.

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John O’Quinn, the well known Houston plaintiff’s lawyer and alumni of the University of Houston Law Center passed away in a car accident this morning. He was a larger than life figure at the University of Houston and you couldn’t avoid seeing his name – it was on the law library, the football field and others.

Most students remember John for the talk he gave each year for the John Black Moot Court Competition – the intraschool oral arguments that are a rite of passage for all 1L students in the spring each year. John never missed a year in the time I’ve been here. He always gave the same talk. He told the story of John Black, a classmate of his at the University of Houston Law Center in much more modest times, a blue-collar guy who developed brain cancer after his first year but was so committed to the idea of becoming a trial lawyer who could represent the little guy that he kept coming to class even after the disease had robbed him of the ability to achieve that dream. When John Black passed away, O’Quinn, with some of the others in his class established the competition in his honor. John teared up every time.

• Houston Chronicle: Profile: John O’Quinn, Attorney’s accomplishments have not been without controversy
• Tex Parte: John O’Quinn had been going to San Antonio mediation but didn’t get on the plane
• Texas Lawyer: Houston Plaintiffs Lawyer John M. O’Quinn Dies in Auto Accident
• Tex Parte: Police say John O’Quinn was driving SUV, not wearing seat belt, in fatal crash
• Houston’s Clear Thinkers: John O’Quinn, R.I.P.
• Houston Chronicle: Lawyer killed in crash was both revered and reviled
• Houston Chronicle: Houstonians share memories of O’Quinn
• Texas Lawyer: Plaintiffs Attorney John M. O’Quinn Remembered as Being ‘Bigger Than Life’
• Houston Chronicle: Funeral for top lawyer O’Quinn set for Wednesday
• Texas Lawyer: O’Quinn killed while rushing home to get papers
• John Maurice O’Quinn’s Formal Obituary by Friend Gerald Treece
• Houston Chronicle: O’Quinn left most of his wealth to his charity

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See also WSJ’s Postgaming Marc Dreier’s Performance on ‘60 Minutes’

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The 14th Annual Frankel Lecture: “25th Amendment: Revisiting Constitutional Provisions for Presidential Succession” is set for November 6th and is now accepting registrations.

• Frankel Lecture Brochure
• Online Registration

November 6, 2009, 8:30am – 10:30am
Doubletree Hotel – Houston Downtown
400 Dallas St., Houston, TX

Keynote Speaker: Professor Akhil Reed Amar, Sterling Professor of Law and Political Science, Yale Law School

Commentator: John D. Feerick, Sidney C. Norris Chair of Law in Public Service, Fordham University School of Law

Commentator: Joel K. Goldstein, Vincent C. Immel Professor of Law, Saint Louis University School of Law

Even as a nation grieved for its fallen president, the machinery of government managed to move forward in the stifl ing confi nes of Air Force One. As Federal District Judge Sarah T. Hughes administered the oath of offi ce to Lyndon Baines Johnson, the Dictaphone captured his pledge:

I do solemnly swear that I will faithfully execute the office of the President of the United States and will to the best of my abilities preserve, protect and defend the Constitution of the United States. So help me God.

Amazingly, the Constitution referenced by LBJ at Love Field in Dallas did not specify when and how the vice-president of the United States would assume control in the event of presidential disability or incapacitation. To clarify succession, Congress drafted the 25th Amendment.

Ratified on February 10, 1967, the 25th Amendment has been invoked
six times:

• Appointment of Gerald Ford as Vice-President (1973)
• Succession of Gerald Ford to the Presidency (1974)
• Appointment of Nelson Rockefeller as Vice-President (1974)
• Acting President George H.W. Bush (1985)
• Acting President Dick Cheney (2002)
• Acting President Dick Cheney (2007)

Succession issues commanded headlines during the Clinton impeachment hearings and were debated anew in the 2008 elections. Should we worry about any gaps in the 25th Amendment? And if these gaps exist, how can we as a nation move to correct them? Join us as the Houston Law Review hosts the Frankel Lecture and three Constitutional luminaries as they assess the history, health and welfare of the 25th Amendment to the U.S. Constitution.

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For the uninitiated (like me), Almost Live was a local sketch comedy show based in Seattle. Aurora Avenue has the reputation you might expect from the skit.

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As noted on SCOTUSblog, the U.S. Supreme Court has submitted a proposal to bring the U.S. Supreme Court Website in-house, from its current home at the Government Printing Office. The proposal itself (.pdf) is quaintly entertaining.

The Court’s current Website at GPO is nine years old.

Pardon me as I clean up the coffee I spit all over my monitor. That’s about 810 people-years.

The system is outdated and must be upgraded to more current technology (both hardware and software) regardless of whether it remains at GPO or is brought into the Court.

You don’t say.

In 2002, the Court deployed an Internet network for web browsing, and in 2004 the Court expanded and upgraded the infrastructure and capacities for web services and Internet-based email.

An Internet network for web browsing…. in 2002… my, my, the l33ts on the Rehnquist court.

Use of the Court’s Website continues to expand. In January 2009, there were 18,765,000 successful “hits” to the site. This is a 100% increase over January 2008. Over the years, as Internet technology has evolved, the public has increasingly sought more web-based information about the Court in a more timely fashion. The Court has determined that it can best meet those requests by moving its Website in-house and integrating it more closely with its other activities. That transfer will enable the Court to better control and manage the Website and to be able to expand the data and services provided by the site more efficiently.

As much as I might like to see what the Supreme Court website would look like under a Carl Malamud-run GPO, this is probably the natural evolution to a Court willing to do more on the web. I welcome SCOTUS 2.0.

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The United States Court of Appeals for the Federal Circuit will be sitting at the University of Houston Law Center on November 3rd, 2009. According to the Court’s calendar, the following cases will be heard:

Panel K: Tuesday, November 3, 2009, 10:00 A.M., The University of Houston Law Center

• 2008-1288 DCT MBO LABS V BECTON [argued]
• 2009-3104 MSPB RACHAL V MSPB [argued]
• 2009-1210 BCA BEYLEY CONSTRUCTION V ARMY [argued]
• 2009-1270 PTO IN RE CHAPMAN [argued]
• 2009-3193 MSPB KNIGHT V MSPB [on the briefs]

Panel L: Tuesday, November 3, 2009, 10:00 A.M., The University of Houston Law Center

• 2008-1418 DCT HUMAN GENOME V IMMUNEX [argued]
• 2009-1182 DCT HUMAN GENOME SCIENCES V GENENTECH [argued]
• 2009-3155 MSPB ARMSTRONG V TREASURY [argued]
• 2009-1313 PTO AMERICAN RICE V DUNMORE PROPERTIES[argued]
• 2009-3200 MSPB GIBSON-MICHAELS V FDIC [on the briefs]

More information is available at the University of Houston Law Center Website

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Our bound copies of all the issues we worked on at the Houston Law Review arrived today. Although I still love to hit the stacks in the library, I cannot remember the last time I went down there for a journal article. Grabbing it off of HeinOnline and SSRN are just too easy, searchable PDFs of the same pages far too convenient.

So I am now the proud owner of 3,343 pages of neatly bound legal analysis, which if I read at all, will far more likely be on my computer than in these tomes sitting on the shelf behind me. The Durham Statement is starting to make more and more sense by the day. See my previous post The Situation of Law Reviews: May You Cite Check in Interesting Times.

Well, at least they look nice.

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