A last observation on the Kraken hearing before I turn back to my actual job.
Before you get yourself into the jam the Kraken lawyers are in now, you have so many opportunities to turn back. You can withdraw incorrect claims. That happens, after all. Something you think 1/
is true isn't true. You can respond to a Rule 11 letter (a warning shot from the other side) by backing off. Once caught, you can apologize. You can try to settle the sanctions motion by offering some kind of satisfaction. And even if you fail at all those things, 2/
If you show up at the hearing and have some kind of explanation other than "Yes, we did all the bad stuff and would do it again" you'd likely escape the worst consequences. Judges really don't like issuing severe sanctions - for one thing, they're often reversed. /3
Despite all of that, Team Kraken seems to have maneuvered themselves into a situation where they're going to be hit. It's a remarkable achievement.
Anyway, we'll see what ends up happening.
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Note from this AM's writing session: if you can, it's very good to leave a brief for a couple of days and let it stew. You think you're not thinking about it, but maybe you are. #AppellateTwitter.
Among other things, the time helps achieve that most important thing in writing an appellate brief, which is not putting the words on the paper (important) but in figuring out what the case is actually about, once the doctrine and the citations are stripped away.
The thing the case is actually about is often different than what most of the lawyers have said it was about.
Maybe you're not even doing your job if you can't figure out what it's really about and just mimic what everyone else says it's about?
Worth noting, the Court is especially scathing towards Texas’s Commission on Judicial conduct, which it evidently feels defied the Court administrative stay. /2
The Court is also pretty unhappy with the decision below /3
@JusticeWillett continues his (sometimes solo) fight against qualified immunity, issuing a powerful dissent from denial of rehearing this evening. He recognizes what many of us have said: there is a "shift" in CA5's QI jurisprudence 1/
In the meantime, the case was removed to federal court. And in federal court you *must* answer counterclaims.
Two years later, after MSJs are briefed, Plaintiff answers the counterclaims. The district judge (alas, one that has been in the crosshairs recently) accepts. /2
But he doesn't explain in any way what excusable neglect might have justified the delay. CA5 not only reverses, it finds there is no excusable neglect. /3
I'm seeing lots of clerkship advice, so here's mine. I've said it before. It's very niche advice.
If you happen to be at a school where people talk unironically about which circuit or district is more "prestigious" - you know who you are - basically, stop it. 1/
Yes, for a few people who are trying to ascend the clerkship ladder to SCOTUS, I guess this is important. I dunno man.
But otherwise, clerking for a judge who is interested in your career and development and treats you fairly is an incredible privilege and honor. /2
All the judges decide important cases that decide important rights for many many people, and the commission that hangs on their wall and the constitutional authority that flows from it is the same.