UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
RICHARD SHEPPARD ARNOLD UNITED STATES COURTHOUSE
500 W. CAPITOL, ROOM D444
LITTLE ROCK, ARKANSAS 72201·3325
(501) 604-5140
Facsimile (501) 604·5149

April 24, 2009
The Honorable Raymond W, Gruender
United States Court of Appeals for the Eighth Circuit
Thomas F. Eagleton Courthouse
111 South 10th Street, Suite 23.365
St. Louis, Missouri 63102
Re:

Lillie Rock School, et al v. Pulaski County School, et ai, No. 07-1866

Dear Judge Gruender:
Since no Petition for Rehearing En [Jane has been filed and the mandate issued, I assume it is okay
to write you.
In your dissent in the June 26, 2006, Opinion in Little Rock School, et al v. Pulaski County School,
et ai,' you disagreed with the "deeply embedded" standard I had used. After considerable
cerebration, I decided you were absolutely correct.
When I used a different standard (the one you suggested) in an order of February 23, 2007, you
disagreed in your concurrence in the April 2, 2009, Opinion.'
This puts me in mind of three things:
1.

Before the Civil War, Braxton Bragg (later a Confederate general) was assigned to
a remote post "out west." There was a shortage of officers, so he became both a
company commander and the post quartermaster. As a company commander, he
submitted a request for certain items. As quartermaster, he denied it. As company
commander, he appealed to the Commanding General. When the General got the
appeal, he exclaimed "My god! Mr. Bragg has argued with every other officer in the
U.S. Army, now he is arguing with himself."

2.

Judge Easterbrook, of the 7th Circuit, authored an opinion in which he warned
against another appeal "of this nature." Sure enough some lawyer took an appeal on
the same point. When the opposing lawyer, in oral argument, reminded Judge

'Little Rock School, et al v. Pulaski County School, et ai, 451 F.3d 528, 541-543 (8th Cir.
2006) (Gruender, concurring in part and dissenting in part).
'Little Rock School, et al v. Pulaski County School, et ai, No. 07-1866,2009 WL 860357,
at *6-7 (8th Cir. April 2, 2009) (Gruender, concurring).

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Easterbrook of his earlier admonition, he responded, "Counsel, don't you recognize
dictum when you see it."
3.

Several years ago my late father-in-law, Robert C. Compton, Sr., of the El Dorado,
Arkansas Bar, and the Honorable Melvin Mayfield (then a Circuit Judge, later a
Court of Appeals Judge, now retired) prepared an amendment to the Arkansas
Worker Comp Statutes. The Arkansas Legislature passed their proposed amendment.
When it came before Judge Mayfield, as Circuit Judge, he held the amendment
unconsti tutional.

I have verified 2 and 3 above. Professor Gary W. Gallagher, who teaches Civil War at the University
of Virginia, tells the Bragg story, but cautions that it may be apocryphal.
Kudos

...

e;dn~
Wm. R. Wilson, Jr.
cc:

The Honorable Roger L Wollman
The Honorable Michael J. Melloy
The Honorable Joe Thomas Ray
The Honorable Melvin Mayfield
Counsel of Record

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