Adios. Adieu. Later. Auf Wiedersehen. Ciao. Na razie. Proshyai. Zai jian.

The fact that some of my blogging contemporaries such as Skelly at A&C and Feddie at SA are hanging it up have forced me to confront the fact that I have been largely neglecting this blog for the past year or so. Indeed, the fact that Ken had to point out that they were gone shows just how much I have been away from the blogosphere lately.

The reality that is staring me in the face is that I have pretty much moved on from blogging and my off-the-bench interests lie elsewhere these days. My father always told me that if I don't have anything to say, I shouldn't say anything at all and I just haven't had much to say lately that anybody would be interested in hearing so I think it is time ride into the sunset (I know that I tried this once before and I came back but I really think that this time I have gotten it out of my system).

I plan to continue lurking around the blogosphere and I will continue to be an avid reader of the likes of Steve, Ken, Greg, Glenn, Howard and Ann, to name just a few.

I'll leave the posts up since a lot of folks still apparently hit the archives.

Adios.

Goodbye House of Lords, Hello Supreme Court.

It's now official. The United Kingdom of Great Britain and Northern Ireland will now have themselves a brand new Supreme Court.

On October 1, 2009, the new Supreme Court of the United Kingdom will replace the House of Lords as the highest court of appeal for Great Britain and the 12 "Law Lords" will then become justices.

The new Supreme Court will hear appeals from the Court of Appeal of England and Wales, the Court of Justiciary and the Court of Sessions in Scotland and the Supreme Court of Judicature in Northern Ireland. The new high court will also hear appeals from the highest courts of 30 British possessions, such as Gibraltar and the Falkland Islands and even a few otherwise independent countries like Jamaica but unlike our Supreme Court, the new British Supreme Court will have no power of judicial review over statutes since Great Britain has no written constitution.

The mother country does one up her former colony on this side of the pond in one respect - all of the proceedings of the new Supreme Court of the United Kingdom will be televised. I hope John Roberts and company are paying attention.

This law clerk brought to you by....

Apparently the Commonwealth of Massachusetts is OK with law firms footing the bill for judges' law clerks but personally I find it very troubling, both ethically and practically. The potential conflict of interest when a judge is involved in a case that also involves the law firm paying the salary of the judge's clerk's is obvious but perhaps less so is the fact that I, for one, would probably not be able to be as open or be able to have a free-flowing discussion in chambers about a case where I didn't feel that my clerk owed me and the court their full allegiance and loyalty.

News of the Weird.

When you think of things to be thankful for, "lizard tattoo on the penis" probably does not immediately leap to mind but it ought to be at the top of this guy's list since it probably kept him out of prison for a long time.

Lawyer asks court to require opponent to wear new shoes.

Heaven forbid that a lawyer be permitted to project "an air of unsophisticated honesty" to a jury.

Boing Boing Via Instapundit.

And we think we have problems.

How about a country ( a British possession no less) where all of the judges are feuding with each other and where they all have either been "arrested, suspended or mired in controversy?" And the judiciary isn't the only disfunctional branch of the government - the police chief was fired for being involved in a burglary of the newspaper office but has since been exonerated and is now suing (although it isn't clear where they are going to find a judge to hear the lawsuit).

Apparently, the situation is so bad that not even Scotland Yard can figure out what is going on. (This story certainly doesn't provide much information.)

Where is all this happening? Why in the place synonymous with avoiding taxes and hiding ill gotten gains, the Cayman Islands.

Via Instapundit.

Floridians protest beach integration.

Alright, I'll admit that while technically correct, that headline up there is a little misleading. It actually refers to these residents of Sarasota who don't like the idea of mixing brown sand with white sand on their beaches. I guess you could call them sand bigots.

This gives a whole new meaning to the concept of a "Gag Order."

I think that perhaps this judge has taken the idea a little too literally.

Perry Mason arrested for practicing law without a license.

Watching Perry Mason on TV back in the late 1950's and early 1960's was a major influence on me and a big reason why I wound up in this profession.

Oh, the shame of it!

Tequila and bean dip don't mix.

Take a bunch of men. Put them in a single room in a Texas motel. Add some high density flatulence and the result is silent but (almost) deadly.

The Time Travel Cheat Sheet.

No time machine should be without one of these (click on the image to zoom in).

Via Gizmodo.

So much for Congressional oversight!

The really sad part is that we now find this both unsurprising and funny.

Breaking News - Al Capone Charged with Tax Evasion!

It's Boston, not Chicago and it's 2009 not 1931, so isn't quite deja vu all over again and incidentally, the Capone in question happens to be a restaurant instead of a gangster but what the hell, it got your attention, didn't it?

In other news from Boston, apparently they have trouble learning English there, but the rest of the country already knew that.

Will smartphones bring the judicial system down?

Who didn't see this coming?

The New York Times reports that a federal judge had to declare a mistrial in a drug case when he found out that nine jurors were using their iPhones, Blackberrys and other internet-enabled cell phones to do their own research on the case.

With the jurors Twittering and posting their thoughts to Facebook, it is only a matter of time before criminal defendants figure out that their best strategy for an acquittal is to set up a Wikipedia page.

I am rapidly becoming a fan of changing the law to allow the use of jamming equipment for cell phone frequencies in places like courthouses.

This gives a whole new meaning to the idea of paperless courts.

The AP reports that an Ohio court will no longer accept case filings unless you bring your own paper because it can't afford to buy any.

No word on whether this applies to the courthouse restrooms as well.

" A billion here, a billion there, and pretty soon you're talking real money!"

Of course these days we are throwing around the word "trillion" in front of the word "dollars" like we actually appreciate the difference.

Here is a good illustration.

Now that's what I call real money!

A tempest in a rice bowl.

A four year court fight that has yet to be resolved and has cost hundreds of thousands of dollars in legal fees would not be news if we were talking about an antitrust case or a patent fight, but a lawsuit over rice?

It seems that a Chinese restaurant is paying a premium for the exclusive right to sell white rice in a Rhode Island food court and wants the Indian restaurant in the mall to stop putting rice on its menu. Of course, it happens that rice is a staple of the cuisine of both China and India and the Indian restaurant says you can't have Indian food without rice any more than you can have Chinese food without rice and so it dyes its white rice yellow. The prolonged court fight is the result.

Ironically, the Chinese restaurant doesn't have a problem with the Taco Bell in the food court serving orange rice with its burritos.

From the Boston Globe

On Presidents' Day, George Washington gets his "Due."

It took 82 years but finally someone noticed that George Washington is misquoted on the pediment of what, thanks to Hollywood, is the most recognized courthouse in the world.

Carved over the columns of the New York Supreme Court's Manhattan courthouse built in 1927, are the words "The true administration of justice is the firmest pillar of good government." What Washington actually wrote in a letter to our first Attorney General, Edmund Randolph, was "The due administration of justice is the firmest pillar of good government."

The steps and facade of this courthouse have appeared in a many movies as well as the TV series "Law and Order" so Washington's misquote is now part of our culture.

Maybe buried somewhere in the 1071 page stimulus bill is some money to create at least one job for someone who knows how to use a chisel.

In other news...

The BBC reports that Sussex police are reopening the investigation of the disappearance of 16 year old Emma Alice Smith, who was last seen riding her bicycle 83 years ago, in 1926.

With the typical Bristish knack for understatement, a police official observed that, "Given the years which have passed this is inevitably a difficult task."

Talk about a cold case!

How do you know when it is time to take away Grandma's driver's license?

80 year old Mary Feeny of Indianapolis gave us a hint when, fresh from her hairdresser, she backed backed out her parking spot destroying a gas meter in the process and then on through the wall of a building housing an architectural firm. In an apparent effort to extricate her vehicle from the architect's waiting room, Ms. Feeny reversed course thereby wiping out a bush and striking four other cars. She then drove back into the same building she had just left and after reversing course yet again, managed to hit two additional cars.

From WISH-TV.

If I were in charge...

I teach a course on Constitutional Law as an adjunct professor at a nearby law school and during class recently, we had a lengthy discussion about to what extent the United States Constitution was operating the way the framers intended. I did not want things to degenerate into a partisan debate (I was only partially successful) nor did I want them to scrap the existing document and start over or otherwise do a wholesale re-write of Madison's work, so I asked them to try to set aside their partisan views and just consider what systemic or structural problems have been revealed in the 220 years it has operated that could be "fixed" relatively simply, yet would preserve or possibly restore the careful system of checks and balances envisioned by the framers.

After much discussion (and some dissension), I asked the students to come up up with constitutional amendments that would "tweak" the basic document in a way that they thought would implement the vision of the founders and do so in a way that would attract broad bipartisan support from the public. I found the exercise stimulating and I thought I would share here the three proposals that I liked the best along with the problem that is sought to be addressed. Some of this is not new but maybe more nationwide debate about some of these things wouldn't hurt:

28th Amendment
The President and the Congress, except in time of war declared pursuant to Article 1, Section 8 or when authorized by two-thirds of the members of both houses of Congress, shall ensure that no expenses of the United States be incurred nor funds expended during the fiscal year established by Congress which exceed the total revenues on hand and anticipated during such fiscal year

This proposed "balanced budget" amendment addresses the lack of any constitutional requirement for fiscal responsibility by the President or Congress. Almost all of the students recognized that even a government that prints its own money simply cannot indefinitely and continuously spend money that it doesn't have and won't collect for another generation or two.

29th Amendment
No law shall embrace more than one object, which shall be expressed in its title. Nor shall any law be amended solely by reference to its title, but the act or the section amended shall be re-enacted and published at length.

The legislative process as currently conducted allows a single bill include, or be amended to include, any number of unrelated matters (read "pork"). This really muddies the waters when a Representative or Senator has to explain or defend a vote to their constituents. Thus, an up or down vote on a bill really matters little in terms of accountability for a Senator or Congressman.

30th Amendment
The provisions of this Constitution shall be construed according to the traditional canons used by the courts to construe statutes and other legislative enactments provided however, that the intent of any such provision shall be principally determined by reference to the plain and ordinary meaning of the words used unless otherwise defined herein and provided further that no subsequent amendment shall be construed to repeal or modify any other provision of this Constitution unless such repeal or modification is expressly provided for in the amendment as ratified.

The root of the controversy over the proper role of a federal judge is that the federal courts have increasingly different criteria to interpret constitutional provisions from those they apply to other types of law and thus have become a place where unelected officials, who hold their appointments for life, set national policy according to their own views instead of merely resolving constitutional issue according to the document as written and amended. As a result, the three way compact between the federal government, the states and the people has become malleable and unpredictable and policy views rather than judicial expertise have become the primary criteria by which federal judges are selected. This proposed amendment would require that the the same rules of construction used to interpret statutes, would be used to interpret the provisions of the Constitution. The theory here is that doing so would make it more difficult for judges (whether liberal or conservative - they all do it) to become the de facto "framers" of the Constitution and by the terms of the document itself, would have to defer to the plain language used as is done in construing statutes.

I know that some, if not all three of these proposals, would be controversial in some quarters. I also know that, given whose ox would be gored, none of these amendments are likely to find their way out of Congress to the states. Oh well, one can dream! Besides, the whole exercise was kind of fun.

Lawyer should get an "F" in History for his Closing Argument

This case has some age on it but I think it is still worth a blog post.

In a convoluted libel case, the appellant argued on appeal that the appellee's trial counsel delivered a prejudicial and inflammatory closing argument. But the bigger problem was that the argument—which invoked Jesus Christ, Julius Caesar, and the Mennonites— was about as wrong on the facts as you can get. Here’s an excerpt:

"You may remember when Christ was preaching the gospel, in the Holy Roman Empire that Julius Caesar was Emperor of Rome. As Christ was making his way toward Rome, the Mennonites and the Philistines stopped him in the road and they sought to entrap him. They asked Christ: ‘Shall we continue to pay tribute unto Caesar?’ And you will remember, in the Book of St. Matthew it is written that Christ said: ‘Render ye unto Caesar the things that are Caesar's and unto God the things that are God's."

Inspiring perhaps, but the lawyer made a few historical errors, including his timeline, which was a bit off. Not that much, just eight centuries or so. The appellate court pointed out folowing the faux pas:

The Holy Roman Empire did not come into existence until about 800 years after Christ. Julius Caesar, who was never Emperor of Rome, was dead before Christ was born. Christ was never on His way to Rome and the Philistines had disappeared from Palestine before the birth of Christ. The Mennonites are a devout Protestant sect that arose in the Sixteenth Century A.D. This phrase is noteworthy only because of the ease with which the speaker crowded into one short paragraph such an abundance of misinformation.

From Hall v. Brookshire, 285 S.W.2d 60 (Mo. Ct. App. 1955).

Obviously, the problem here is that this case was tried in the Dark Ages BW (Before Wikipedia).

Thanks to Judge James Barlow.

Will the new Solicitor General break with tradition? I'd say the odds are pretty good.

The Mad Law Professor asks the question. Will the new administration's Solicitor General, current Harvard Law School Dean Elena Kagan, break with the tradition of wearing a morning coat when appearing to argue cases in the Supreme Court of the United States?

Since she is the first woman to hold the post, I doubt that the formal ware worn by men since before the turn of the previous century, which includes stripped pants and a coat with tails, will find a place among the business suits in her closet.

Thus will a 138 year tradition come to an end. Of course, I think I would rather see that tradition end than see Dean Kagan wearing this outfit.

Congressional Motors Presents the 2012 Pelosi.

Although whoever wrote this has an obvious rightward tilt, and even though I am pretty "green" when it comes to cars and houses, with all that's going on in Detroit and Washington these days, this is just too funny not to share.

It's in the way you dress. The way you boogie down. The way you sign your unemployment check. You're a man who likes to do things your own way. And on those special odd-numbered Saturdays when driving is permitted, you want it in your car. It's that special feeling of a zero-emissions wind at your back and a road ahead meandering with possibilities. The kind of feeling you get behind the wheel of the Pelosi GTxi SS/Rt Sport Edition from Congressional Motors.

All new for 2012, the Pelosi GTxi SS/Rt Sport Edition is the mandatory American car so advanced it took $100 billion and an entire Congress to design it. We started with same reliable 7-way hybrid ethanol-biodeisel-electric-clean coal-wind-solar-pedal power plant behind the base model Pelosi, but packed it with extra oomph and the sassy styling pizazz that tells the world that 1974 Detroit is back again -- with a vengeance.

We've subsidized the features you want and taxed away the rest. With its advanced Al Gore-designed V-3 under the hood pumping out 22.5 thumping, carbon-neutral ponies of Detroit muscle, you'll never be late for the Disco or the Day Labor Shelter. Engage the pedal drive or strap on the optional jumbo mizzenmast, and the GTxi SS/Rt Sport Edition easily exceeds 2016 CAFE mileage standards. At an estimated 268 MPG, that's a savings of nearly $1800 per week in fuel cost over the 2011 Pelosi.

Even with increased performance we didn't skimp on safety. With 11-point passenger racing harnesses, 15-way airbags, and mandatory hockey helmet, you'll have the security knowing that you could survive a 45 MPH collision even if the GTxi SS/Rt were capable of that kind of illegal speed.

But the changes don't stop there. Sporty mag-style hubcaps and an all-new aggressive wedge shape designed by CM's Chief Stylist Ted Kennedy slices through the wind like an omnibus spending bill. It even features an airtight undercarriage to keep you and a passenger afloat up to 15 minutes -- even in the choppy waters of a Cap Cod inlet. Available in a rainbow of color choices to match any wardrobe, from Harvest Avocado to French Mustard.

Inside, a luxurious all-velour interior designed by Barney Frank features thoughtful appointments like in-dash condom dispenser and detachable vibrating shift knob. A special high capacity hatchback holds up to 300 aluminum cans, meaning fewer trips to the redemption center. And the standard 3 speaker Fairness ActoPhonic FM low-band sound system means you'll never miss a segment of NPR again. Best of all, the Pelosi GTxi SS/Rt is made right here in the U.S.A. by fully card-checked unionized workers and Detroit's famous visionary jet-set managers. Even if you don't own one, you can enjoy the patriotic satisfaction that you're supporting the high wages, good benefits, and generous political donations that are once again making the American car industry the envy of the world.

But why not buy one anyway? With an MSRP starting at only $629,999.99, it's affordable too. Don't forget to ask about dealer incentives, rebates, tax credits, and wealth redistribution plans for customers from dozens of qualifying special interest groups. Plus easy-pay financing programs from Fanny Mae. So take the bus to your local CM dealer today and find out why the Pelosi GTxi SS/Rt Sport Edition is the only car endorsed by President Barack Obama. One test drive will convince you that you'd choose it over the import brands. Even if they were still legal.

Hat tip to Autoblog.

Should only law professors be appellate judges?

Professor Carl Tobias of the University of Richmond Law School offers advice to President-elect Obama here about the type of appellate judges he should appoint during his term. Professor Tobias' advice can be summed up in two words - "law professors."

Implicit in the good professor's piece is the clear suggestion that the federal courts of appeal (presumably including the Supreme Court) cannot perform their function effectively unless every judge or justice was a law professor before donning the robe.

All I can say is "WOW, what arrogance!"

Professor's Tobias' supports his premise by observing that "Much of the work that law professors undertake strikingly resembles the responsibilities that appellate judges discharge. For example, when conducting scholarship, academics objectively analyze, synthesize and criticize a series of case precedents, attempt to evaluate relevant legal issues from a "big picture" viewpoint, and proffer suggestions for improvements in the law."

So let me get this straight, only law professors are capable of scholarly research, analyzing legal principles and facts objectively, synthesis and criticism of legal precedent, seeing the "big picture," or suggesting improvements in the law? I guess you can't possibly be capable of those things if you actually practiced law or otherwise prospered professionally outside of an ivory tower.

Don't get me wrong. I don't have any problem with a law professor becoming a judge. There are a couple of them on my court and they are fine judges and demonstrate all of the characteristics noted by Professor Tobias. Of course most of my colleagues who have never been law professors exhibit the same abilities. I think that the best appellate courts are those with judges who came to the bench from a mix of backgrounds and with variety in their curriculum vitae.

Can you imagine if all of our past Presidents had subscribed to Professor Tobias' approach? We would have missed out on the contributions to the judiciary made by judges like John Marshall, Benjamin Cardozo, Oliver Wendell Holmes, Jr., or Learned Hand to name but a few.

As far as I'm concerned, the federal appellate courts are increasingly a judicial theocracy that is often out of touch with the real world in which the law operates. As the old aphorism goes, academics are capable of squabbling with each other with an intensity that is possible only because the stakes are so low. I don't think a solution to that problem is to put them in a setting where the stakes are much higher.


Thanks to my cyber-colleague Steve of Virginia Appellate blog fame for the tip.

British judges more willing to talk to the press.

Judges typically don't talk to the press but the London Times reports here that changes may be in store as more "activist" judges are appointed who see in the media an opportunity to educate the British public about the courts and the role of a judge. Can't you just see somebody dressed like this doing a press confeence?

Actually, I applaud this approach. I have long thought that judges ought utilize the media to do more to educate the public about the judicial system and the business of judging as long as they avoid commenting on specific cases. Of course I am also in the minority of judges who find nothing wrong with the media televising judicial proceedings.

I know its a crime but you really have to admire their ingenuity.

Robert Catalano and George Wills have pleaded guilty in U.S. District Court for conspiring to sell the "Whizzinator" -- a prosthetic penis sold with a heating device and dried urine which helps people fake their way through drug tests.

From TMZ.

Commit a virtual murder and you might go to a real jail.

A 43-year-old woman in Japan has been arrested for killing her husband, although they weren't legally married, she didn't really kill him, and he isn't really dead.

The two only met online, as part of a popular interactive game called "Maple Story" in which cartoon-like "avatars" (example shown) fight monsters, interact, and get married (or at least these two did). They also apparently get divorced, or more accurately, she got cyberdumped.

"I was suddenly divorced," the woman said, "without a word of warning. That made me so angry." She was apparently so angry that she used his login information -- which he had foolishly given her back when they were "happily married" -- to access his account and delete his avatar. He then called the police (real ones, not virtual). They, apparently having no crimes at all to prosecute in their own area, traveled 600 miles to Sapporo to arrest the woman and bring her to the jurisdiction where the brutal deletion took place.

The woman is not actually charged with murder. She was arrested for illegally accessing a computer and manipulating electronic data. She might also be charged with destruction of property, since avatars and the "things" they own arguably represent an investment of time (and money in terms of online fees).

The woman had not been formally charged as of October 23, but if convicted of the illegal-access charges she could be fined up to $5,000 or given up to five years in prison.

Via the BBC.

"Ender's Game" author asks "Where have all the honest journalists gone?"

I have been a science fiction fan since the heyday of Robert Heinlein and Arthur C. Clark and I regard Orson Scott Card, the author of the classic Ender's Game, as one of the best of their modern successors. I was surprised to learn that he is also a journalist and political pundit who isn't afraid to criticize both his profession and his political party.

Sci fi authors say things that need to be said but they usually disguise them in futuristic plot lines. It's refreshing to occasionally see them say what they think about the present.

Hat tip to Glenn Reynolds.

If you gotta go, this might not be the place.

I think the Darwin Award winning caption should be "Here, hold my beer and watch this!"

Thanks to Whole Wheat Toast.

(Actually, I doubt anybody who checked out this way actually would win this years Darwin Award. Based upon the current vote count, it appears that Father Adelir Antonio de Carli, the lawn chair balloonist from South America, is well on track to become this year's winner.)

Apparently, elections can kill you.

What with all the fund raising letters, telephone polls, negative campaigning and 24 hour news cycle spin, I guess it was inevitable that someone would discover that elections are hazardous to your health.

In fact, you are 18% more likely to die in an auto accident during voting hours on election day. Maybe it is all those undecideds trying to make up their mind instead of concentrating on the road.

From LiveScience.

The Pink Panzer?

I guess I'm dating myself but I remember when the only muscle powered vehicles that people attempted to build involved orange crates and old roller skates.

Now they apparently involve pneumatic cannon and bizarre urban camouflage.

Via PopSci.