The Etiquette of Jurisprudential Unicorns: Review of a Recent Fifth Circuit Concurrence

Scholars traditionally classify the statements in a judicial opinion as “holdings” (the reasons for a court’s decision) or “dicta” (additional discussion not necessary to the result, with varying precedential value depending on its thoroughness). But that distinction comes up short when applied to Fifth Circuit Judge James Ho’s recent concurrence in Defense Distributed v. Platkin. The concurrence—a courteous (though unenforceable) request to a district court in another circuit—is an unusual jurisprudential addition to the patchworks of holding and dicta that ordinarily fill the Federal Reporter.

September 23, 2022 David Coale

Does Adoption of AAA Rules Show Parties Wanted Arbitration? SCOTX Hears Arguments

Lawyers on opposing sides in a $41 million dispute over offshore drilling differ on the need for a new rule defining the meaning of standard arbitration rules in a contract on the gateway issue of arbitrability. Courts of appeals have split on the issue.

September 22, 2022 Janet Elliott

Texas Supreme Court Considers Walmart’s Bid to Revive $4M Xerox Suit

During oral arguments before the Texas Supreme Court Wednesday, Justice Jimmy Blacklock expressed some hesitation about the ramifications of adopting an argument from Walmart that it is a third-party beneficiary of a contract between the government and Xerox over the administration of a food-assistance program for low-income individuals.

September 21, 2022 Michelle Casady

With a Decision that May Lead to New Law, SCOTX Grapples with Two Cases in Which Ph.D. Revocations are Threatened

Texas Supreme Court justices give no hint whether the universities' implied-powers argument can justify their efforts to rescind doctoral degrees awarded to former graduates for "academic misconduct." In Texas, such revocation power has never been determined by reported appellate decisions and only a few revocations have been noted nationwide. The grads argue the universities have no express authority to do so. The AG says the power is implied from an express power to grant degrees. Behind that argument, due-process concerns linger in both cases.

September 20, 2022 Osler McCarthy

UT Law Prof Calls Out Texas’ ‘Deliberate Strategy of Judge Shopping’ to SCOTUS

University of Texas School of Law professor Stephen Vladeck filed an amicus brief Monday calling out Texas for undermining “core principles” of Article III standing with “transparent judge-shopping tactics” in its challenges to various Biden administration directives. He told the justices Texas shouldn’t be allowed to “so transparently manipulate the legal system in order to obtain injunctive relief against any party — including the federal government.”

September 19, 2022 Michelle Casady

Litigation Roundup: Insurer Sued Over Underpaid Ransomware Attack Claim, FC Dallas Hit With Ticket-Sales Patent Suit, Total and Kinder Morgan Head Back to Trial Court in Insurance Dispute

In this week’s edition of Litigation Roundup, a team from Vinson & Elkins gets a win for the Sabine-Neches Navigation District in a case of first impression involving the Water Resources Development Act, a bus manufacturer is hit with a wrongful death lawsuit over the death of a 6-year-old girl and a Taiwanese pipe maker escapes a wrongful death suit.

September 19, 2022 Michelle Casady

At SCOTX, A Medical Researcher Fights to Keep UT from Rescinding Her Degree; Call It a Daavid ja Goljat Struggle

For 10 years Suvi Orr has lived with the threat that the University of Texas will revoke her Ph.D. in organic chemistry. For 10 years she’s been fighting back in court against the university’s complaint that she was academically dishonest, based first on a scientific journal published years after graduated related to her dissertation research to create a synthetic compound for cancer treatment. Then on her dissertation research itself. She says she did nothing wrong.

Her lawyers say she’s been denied due process and argue UT cannot void a degree long after a student has graduated, not without full due process in a court hearing that she has never had.

But Tuesday, 14 years after her graduation, 14 years after the start of a pharmaceutical-research career and dozens of peer-reviewed journal articles and patent applications that came with it, the Texas Supreme Court will decide whether UT has the power to do what it wants to do and whether the disciplinary process affords Suvi Orr procedural protection.

September 19, 2022 Osler McCarthy

Fifth Circuit Upholds Texas Social Media Law Against Facebook, Twitter

A federal appeals court panel, in a 2-1 decision Friday, upheld the Texas law that prohibited large social media companies, such as Twitter, Facebook and YouTube, from deleting a user’s comments and content even if the media platforms believe the content is harmful or extreme. A three-judge panel of the Fifth Circuit ruled the 2021 law, known as HB 20, "chills no speech whatsoever. To the extent it chills anything, it chills censorship.” The dissent said the U.S. Supreme Court will have the last word.

September 16, 2022 Mark Curriden