Re: Judge Cannon - in civil cases, we normally do jury instructions at the end of the trial. Is criminal different?

Again, I think she's wrong not to sort out the mess now, but there's a lot of magic thinking in the articles I'm reading about how she's behaving. The reason it's unusual here is that the former President is being prosecuted. But I've got to assume in 99.99% of other cases the charge conference is after the close of evidence.

One time, I had a case where the judge up and wrote some jury instructions 2/

Unless I'm interrupted by a call, I am going to take the time to live-tweet the SB4 stay argument this morning at CA5 at 10 am.

For those new to CA5 and its characters: the panel is Chief Judge Richman, Judge Andrew Oldham, and Judge Irma Ramirez, the newest judge. 1/ For those who don't know, Chief Judge Richman has been on the Court for some time. You may know her as Priscilla R. Owen, her name until recently (she changed her name upon marrying Chief Justice Nathan Hecht of Texas). She will be the voice you hear presiding. /2

So I think the point that Trump doesn’t need to bond to appeal has been made, so let me quickly address one other thing: unless someone shows me otherwise, the $450,000,000 judgment is enforceable right now (realistically, Monday) 1/ Yes, Trump has 30 days to appeal, that’s true. /2

Again, I do not understand why people are having such trouble getting this, but it is absolutely not true that Trump has to pay the judgment or bond the judgment or do anything to the judgment to appeal.

newrepublic.com/post/179203/tr…
Yes, it is likely going to be very hard for Trump to bond $450,000,000, I agree. But he can still appeal.

CA5 amended its decision in Rahimi - its Feb. opinion striking down, under Bruen, 922(g)(8)'s gun restrictions.

Judge Ho expanded his concurrence. Among other points, he now says that domestic violence orders are used strategically in divorce. 1/

drive.google.com/file/d/13PtN6V… Because those orders have this strategic element, he says, men are sometimes subject to unwarranted restraining orders (and thus deprived of their "first class" right to arms /2

My full thread.

Usual caveat: I am live-tweeting with no transcript. The "quotes" are paraphrases.

The improper tea-leaf reading portion of the proceedings - CA5's test, that Title VII discrimination requires an "ultimate adverse employment action" - will be no more. 1/

https://twitter.com/RMFifthCircuit/status/1618070069615169536

I think that's almost 100% clear from OA. Almost no one defended it.

What will replace the test? I think a sort of materiality threshold derived from the standards used by the other circuits.

Plaintiff's argument that the text contains no such restriction will need to wait.

Alright, y'all, buckle in. CA5 today heard en banc argument in Hamilton v. Dallas: women allege that Dallas county makes women work the weekend, but men can get the weekend off.

CA5 precedent says this claim fails because the shift time is not an ultimate employment decision. If anyone wants to follow along, you can find the audio here.

ca5.uscourts.gov/OralArgRecordi…

Didn’t read this yet, but that seems pretty surprising.

https://twitter.com/steve_vladeck/status/1603581422429949952

Is this whole holding about the new limits on habeas dicta?

Just out: another CA5 opinion in a dispute about 3-D printed guns.

Long story short - WDTX transferred the case to New Jersey. CA5 didn't like that, and ordered WDTX to ask NJ to send it back. That court said no....

1/

drive.google.com/file/d/1YAv85B… In this new iteration, the plaintiffs asked the Fifth Circuit to revive their claims in Texas, contrary to the transfer. CA5, with some clear reluctance, says no. Even though the NJ court's actions failed to adhere to comity, says CA5, there's nothing we can do. /e

I know I constantly complain about this, but why? Why does Westlaw do this? Yes, I get it, the district judge says there are some limits to Gore. Fine. Lots of courts have said that. Why would you say this district court is calling the Supreme Court of the United States into "doubt."

This is genuinely an unbelievable thing to tweet when you’re in serious legal and business jeopardy. It is a masterpiece. The Mona Lisa.

https://twitter.com/sbf_ftx/status/1590709199067295749

My man, you need to hire lawyers right now. Stop tweeting, pick up phone. Not me! But lawyers.

Someone needs to explain to me how a non-binding letter of intent stops a liquidity crunch.

I don't follow these companies, literally don't know. But it seems odd.

https://twitter.com/cz_binance/status/1590013613586411520

OK, having done a little more digging, it appears quite clear that the non-binding LOI premised on due diligence did not in fact work.

I missed early voting this year, so I’m heading to the polls now.

It’s an opportunity to note that Harris County’s excellent drive-through voting system was made illegal by the Texas legislature, for more or less no reason. As someone who used the system, the integrity reasons the legislature gave were, to be polite, made up.

A Mississipi man was convicted of manslaughter for what he says was an accidental discharge. Later, he sued the manufacturer for the product defect, but too late says CA5, and they failed to plead fraudulent concealment.

OK, but...

ca5.uscourts.gov/opinions/pub/1…

1/ As the Court acknowledges, a complaint with a mere pleading deficiency is usually dismissed without prejudice, and here the district court dismissed with prejudice. The plaintiff loses despite this straightforward problem, however, because he didn't ask to replead.

OK, here's a new and confounding (and sad) QI case. A young man has suicidal ideations. His mom calls the police. The police promise they won't shoot him. But they promptly do. CA5 affirms grant of qualified immunity to chief.

Why confounding? 1/
drive.google.com/file/d/1BzvW9h… Problem #1: the plaintiff appears unable to plead whether he is dead or not. This is from the district court opinion. CA5 does not seem to address this issue. 2/

https://twitter.com/RMFifthCircuit/status/1589721965425987584

I'd missed yesterday's CA5 textualism thunderdome between Judges Oldham and Willett - it's a criminal case. But a friend pointed it out to me. *Well* worth reading.

The question is: does the defendant fail if one of those is true or all three?

ca5.uscourts.gov/opinions/pub/2… Just Oldham says the defendant loses if any one of those is true. In other words, they're linked by an "or." In so holding, he has a short treatise of what he calls hyper-literalism, citing the great scholar John Manning (his fed courts teacher). /2

So normally I'm posting #Appellatejobs for other people, but not today. Because Wright, Close & Barger LLP has at least one opening. We're looking for people who want to practice appellate law here in Houston that have 1-4 years of experience as a lawyer.

Resumes to me! Oh and if you have any preliminary questions, dm or email me!

CA5 denies mandamus to Planned Parenthood, which is fighting a qui tam action against an individual Relator and the State of Texas. PP wants out of Amarillo, and wants to go back to Austin (where a related case took place).

ca5.uscourts.gov/opinions/pub/2… The Judge they were trying to transfer away from is Judge Kacsmaryk (a recent appointee). Had the transfer been granted, I suspect they had Judge Lee Yeakel (though haven't checked).

Of course the arguments are couched as about convenience and so on, but 2/

I'm listening to the affirmative action arguments, but there can be few oral arguments that could have less effect on the resolution of the case.

Maybe the arguments will have consequences for public opinion or politics - not talking about that. But surely the cake is baked. Would the case be any different if counsel got up and said "no affirmative action" and sat down?

The Fifth Circuit reverses and grants judgment *for* a judge who does a prayer ceremony in his courtroom before hearing cases.

Judge Jolly dissents in relevant part. His description of what the scene in Court is like is below. 1/

drive.google.com/file/d/1pmSsfA… Judge Smith's opinion for the majority is really long, and I'm a little pressed right now. Bottom line: he finds the prayer ceremony consistent with American history in court.

There is a very disturbing case heading to CA5 I just happened on.

Judge granted a TRO lifting a student's suspension for sexual assault. The student admitted being a "rapist": but the judge says the process was flawed because of "gender bias."

storage.courtlistener.com/recap/gov.usco… Among the indicia of gender bias the district court perceived was the thesis of one of the expert witnesses (which says men are more likely act in certain socially improper ways). The thesis itself is gender bias, the court says.