Sunday, June 18, 2017

Oklahoma Supreme Court addresses application of 20 OS 95.10

The Oklahoma Supreme Court holds that 20 OS 95.10 does not require judicial disqualification upon appellate reversal and remand.  The statute is not allowed to usurp the courts' superintending control of judicial assignments.

"Mere reversal of a lower court's dispositive rulings will not, standing alone, provide a sufficient basis to warrant disqualification."

Commentary on the BNSF decision

Follow the link for excellent commentary on the BNSF decision on general jurisdiction.

Saturday, January 21, 2017


If a garnishment affidavit contains a false statement, this does not give rise to a separate cause of action.  Instead, the remedy is within the action where the false statement was made.  "[S]uch an allegation is a defense to the underlying collection action and must be asserted in that suit." Stricklen v. O.I.P.M., LLC, 2017 OK CIV APP 3.

Friday, November 25, 2016

Opening statements

An excellent read on opening statements, from a legendary Oklahoma trial lawyer, of use to anyone with an interest in Oklahoma trial procedure.

Block Quotes

We've all seen them -- block quotes from other sources.  This writing technique has become a simple and way-too-easy method of adding sources and content -- to everything from a blog post to an appellate brief.  Content editors provide tools for indentation of your block quote, which can then be linked back to the original source.  I would say that this crutch has become overused, but the word 'become' would be out-of-place.  Twenty-two years ago, when reading and judging "write-on essays" for Texas Law Review, I found that at least a handful of my contemporaries would scarcely connect their series of block quotes with text, barely sufficient to connect their reasoning in some logical manner.  These law students were among the best -- law students, after all, at the University of Texas.  But their method of presentation became both a distraction and a reminder that their reasoning was borrowed.

The hallowed halls of UT Law placed great emphasis on original thought.  I spent a great deal of my third year editing articles by and about Prof. Philip Bobbitt, whose writings represent some of the most enduring in generations of law professors.  But some of his critics argued that Prof. Bobbitt's thoughts were not original.  Jack M. Balkin & Sanford V. Levinson, Constitutional Grammar, 72 Tex. L. Rev. 1771 (1994) was the academic equivalent of insulting a person's heritage on the playground.  See Philip C. Bobbitt, Reflections Inspired by My Critics, 72 Tex. L. Rev. 1869 (1994).
 With this emphasis on original thought, it became even more important to avoid the common practice of linking together a series of block quotes from other sources.

But what are the options for the legal writer -- who is so dependent upon sources and attribution, and whose original thoughts may well be critique of or commentary on other thoughts?

More after the break....

IN CASE YOU MISSED IT: Civility in motion practice

Oklahoma Civil Procedure: Civility in motion practice: I recently had occasion to review a seminar presentation that I gave ten years ago.  The topic was ethics in appellate and summary judgment ...

Wednesday, October 12, 2016

Appealable denial

Oklahoma Supreme Court carves another small exception to the rule that denials of summary judgment cannot be reviewed on appeal.

Thursday, March 3, 2016

Gavel to Gavel: Passionate Independence

In a book whose title I have long since forgotten, professor Sanford Levinson compared the U.S. Constitution to Ulysses’ pact with the crew of his ship, to bind him to the ship’s mast as it transported him past the Sirens. My quick research shows that many other constitutional scholars have written about the allegory, including Stephen Holmes and Jon Elster, who wrote from the perspectives of philosophy and social sciences.

But the allegory helps understand why we, as a nation and as the state of Oklahoma, would impose limitations on the current majority’s ability to fundamentally change our government. Founders (state or federal) hold a responsibility to protect us from future majorities – regardless of political affiliation. Our federal constitution is designed to protect the country from expansive new legislation that might be enacted by an administration seeking fundamental change. Likewise, our state constitution and legal system is designed to help us avoid governmental change.

Read more:

Tuesday, July 28, 2015

The Court's decision on the Ten Commandments

The Court's decision on the Ten Commandments is now available for download on the Court's docket.  The main decision was entered on July 27, 2015, along with five separate opinions joined by various combinations of the nine justices.  These five separate opinions give Oklahomans great insight into the justices' views of the law on Oklahoma's establishment clause.  Required reading for any Oklahoma interested in our State's Constitution and constitutional law.  Find the decision and separate opinions in PDF form, linked here:

Tuesday, July 7, 2015

Our constitutional dispute

Our "constitutional dispute" is making national news.  Here are a few things to keep in mind.  First, no one is in violation of court orders yet.  The matter remains on appeal until mandate is issued, which will be after the rehearing process (whether granted or denied).  Once mandate is issued, the mandate must be "spread of record."  And the Supreme Court's order suggests further proceedings on remand, presumably consisting of some motions dealing with how the Supreme Court's decision will be memorialized in the trial court.  That does take time.  But we can expect the plaintiffs to seek swift movement.  Second, the Governor's statement does not state that she will order a violation of the Court order.  It just says (i) we respect rule of law, (ii) we will seek further proceedings, (iii) we will seek a constitutional amendment, and (iv) the memorial isn't going anywhere.  This leaves her leeway to order compliance with the court order once it is enforceable.  Third, I don't think it will be the governor who will be in contempt as she is not a party.  The party defendant is the Oklahoma Capitol Improvement Authority.  The Authority is represented by the OKAG.  It is not clear yet whether the OKAG will sponsor or allow contempt of court.  I will be watching this one closely, as it has the potential to turn into a constitutional crisis.  But it isn't there yet.