Happy New Year 2006!

To leave the old with a burst of song
To recall the right and forgive the wrong;
To forget the thing that binds you fast
To the vain regrets of the year that's past;
To have the strength to let go your hold
Of the not worthwhile of the days grown old,
To dare to go forth with a purpose true,
To the unknown task of the year that's new;
To help your brother along the road
To do his work and lift his load;
To add your gift to the world's good cheer,
Is to have and to give a Happy New Year.
Here's to the bright New Year
And a fond farewell to the old;
Here's to the things that are yet to come
And to the memories that we hold.

When is an appellate brief like a game of chess?

Nate Oman waxes poetic over a well crafted appellate brief in this post over at Concurring Opinions.

An excerpt:

A well written brief has a kind of beauty about it. It will have a unifying structure, a clear skeleton on which the flesh of the argument hangs. Doctrinal arguments and policy arguments will be woven together, adverse precedents will be carefully distinguished without seeming glib or plodding. The writing will be clear and free from jargon (except for the occasional flourish of a Latin maxim). At the end of the brief, the reader will be left thinking, "“The law supports the appellant'’s claim and it is a good thing to, as our law is wise and just and clear."” A badly written brief is all ugliness. The question presented will run on for pages. The argument will be lost in a profusion of points and subpoints, never coalescing into an identifiable structure. Adverse precedents will be ignored or labored over for pages. Doctrine and policy will be left in stark isolation, presenting the judge with the unhappy choice of enforcing a bad law or ignoring the law to reach a just result.

In this sense, an appellate brief is like a game of chess. A person who knows how the pieces move, but has no grasp of how the game is played will push pawns and bishops aimlessly around the board, attacking and defending pieces with discernibleble strategy or plan. Weaknesses in the player'’s position will develop, backward pawns, and hanging material will proliferate as pieces clog the lines of attack of their fellows until ultimately the game sputters to an accidental ending. In contrast, in a well played game of chess each move will fit into a position or plan. There will be identifiable strategic goals and great care to avoid the minor weaknesses that will later flower into catastrophe. The game will utlimately be decided by the execution of a coherent strategy pushed forward by precise attacking combinations.

While I lack his flair for the dramatic (maybe if I could write my opinions with Nate's sort of deathless prose, people would actually read them), I mostly agree with everthing Nate says however, unlike Nate, I don't typically discern the finger of God on the keyboard behind a well written brief, however, I do perceive the intellect and professionalism at work which epitomize the ideal of the legal profession.

Like Nate, I read briefs for a living and like him I thoroughly enjoy a well written brief. Why? Because it is more inclined to grab my interest intellectually and at the same time it makes my job easier. A well written brief presents a party's legal position in a way that stimulates thoughtful consideration of the legal issue(s) presented and challenges the judges who read it to reconsider the implications of the application of existing precedent in light of what may be unintended consequences.

Alas, in my experience, such a brief is the exception rather than the rule. Most briefs are mediocre in the sense that little thought has been given to the best way to present the issues and the legal arguments in the most persuasive way possible. Some appear to be little more than the unstructured regurgitation of aspirational platitudes and generalizations about "fairness" and "justice" rather than tightly reasoned and articulated legal arguments. Any appellate judge will tell you that appeals are as much a part of the adversary process as the trial and therefore they do their best work when they get help from the lawyers in the form of tight, well crafted legal arguments woven into the facts.

It doesn't happen often enough but occassionally, I do see an appellate brief that represents the work of a professional who merits the term "craftsman" and who obviously has coupled an outstanding work ethic with the knowledge of how to package a persuasive and intellectually stimulating legal argument.

As far as comparing brief writing with chess, I used to play quite a bit and after reading Nate's post, I immediately thought of this quote from Grandmaster Savielly Tartakower:

A Chess game is divided into three stages: the first, when you hope you have the advantage, the second when you believe you have an
advantage, and the third... when you know you're going to lose!

On balance though, I disagree with Nate about one thing - writing a good brief isn't like playing a game of chess or any kind of game for that matter. Unlike a game, which is forgotten as soon as it is over, a well written brief is the foundation upon which a lasting structure may be built. Those legal principles that stand the test of time all began with a well crafted brief.

Merry Christmas to all ...

I note from my sitemeter logs that while this blog is not as widely read as some, among the three dozen or so daily readers are some dedicated regulars from around the world so as I get ready to take a Christmas break from blogging, let me wish all of you

Merry Christmas
Happy Christmas
Feliz Navidad
Joyeux Noel
Froehliche Weihnachten
Buone Feste Natalizie
Mele Kalikimaka
Nollaig Shona Dhuit
Buone Feste Natalizie
Kurisumasu Omedeto
La Maunia Le Kilisimasi Ma Le Tausaga Fou
Nollaig chridheil huibh
God Jul
Maligayamg Pasko
Nadolig Llawen

Time's Newsmaker of the Year is a Judge (in Canada).

No, I'm not oblivious to the fact that Bono and Bill and Melinda Gates are on Time's cover as its 2005 "People of the Year." It's just that Time didn't stop there. The Canadian version of the magazine has named Canada Supreme Court Justice John Gomery as its 2005 "Newsmaker of the Year."

Justice Gomery received the recognition for "his work under the public glare, for renewing a modicum of faith in democratic accountability at a time of unprecedented anger toward politics and politicians, and for handling a complicated and supercharged inquiry with authority, charm and passion." He chairs a commission which is looking into "the sponsorship scandal" whatever that is.

Mail Call!

A reader who I gather is a law student has e-mailed this two-part question:

"Interesting blog but I'm curious about a couple of things. First, what is the origin of the title of this blog? Second, one of my professors mentioned that many lawyers complain about not being able to cite unpublished opinions and I wondered about the process your court goes through in deciding whether to issue a published vs. unpublished opinion?"

Although I have previously answered both of these questions, those responses were among the victims of the Great Blogger Implosion of August, 2005 (besides, it's always nice to hear from a reader, there aren't that many of you out there).


The name of this blog pays homage to a favorite television show of my youth, a rather cerebral western by the name of "Have Gun, Will Travel" which starred Richard Boone (pictured) as "Paladin," a hired gun with a conscience and a code of honor. The show aired in the late 1950's (when dinosaurs roamed the earth and there were only three networks and they broadcast only in black and white). The title also plays upon the nature of my job as an appellate judge which is to render opinions on all manner of legal subjects and which also involves a fair amount of travel, usually to my state's capital.

As far as the second question is concerned, the policy my court has adopted is to publish our opinions fairly sparingly and only when a majority of the panel members hearing the case believe that the opinion: 1) involves a new statute or a new amendment to an existing statute; 2) an issue of first impression; 3) the extension or restriction of a legal doctrine or existing precedent; 4) a reaffirmation of existing precedent that has not been addressed by the court in the last decade or so; or, 5) to alert the bar to a procedural infirmity that may impact on numerous other cases if not brought swiftly to the attention of practitioners (translation: the court decided a 2x4 was needed to get the attention of the bar).

My court also sits en banc on a regular basis and we usually publish any case that is decided by the full court, The rationale for that is that these cases usually tend to be the more significant ones and only the full court sitting en banc can overrule either existing precedent (something we do very rarely) or overrule the recent decision of a panel that the court as a whole believes to be in error (something we do rather more often).

If we have done our job properly, there is no need to ever cite an unpublished opinion because, theoretically at least, there should be a published opinion on the same point. I understand that because there are more unpublished opinions out there, you may be more likely to find one of those with a set of facts that are closer to your set of facts but that shoudn't matter. Having said that, I will admit that when I first came on my court, there turned out to be several important areas where there simply were no published opinions at all. In the time I have been on the court, that has pretty well been rectified but I still understand the frustration. The flip side from the perspective of my court is that an unpublished opinion is not circulated beyond the members of the panel while a published opinion is circulated to the full court for review and comment (although only the members of the panel have a vote on the outcome). Because published opinions go to every judge and undergo quite a few more drafts, they take a lot longer to get out and it just would not be practical to handle every opinion that way, especially when there is really nothing new to be said on that issue and we are just repeating something said in a long line of other cases.

Another NFL standout is "benched."

Former Pittsburgh Steelers cornerback, Dwayne Woodruff is now a judge of the Allegheny County Court of Common Pleas. He was elected last month but was appointed to take the bench early by Governor Rendell to fill out the unexpired term of his predecessor who assumed senior status.

Woodruff, the 1992 Steelers MVP, joins several other NFL alumni on the bench.

No engineer's victory dance now but maybe one of these days.

Dilbert creator and recent addition to the Blogosphere, Scott Adams, has been diagnosed with a permanent speech condition called Spasmodic Dystonia or Dysphonia. No, this is not a joke.

According to WebMD,

Spasmodic dysphonia is a voice disorder characterized by momentary periods of uncontrolled vocal spasms, tightness in the throat, and/or recurrent hoarseness. At certain times, affected individuals must make a conscious effort to speak. The most frequent sign of this disorder is a sudden, momentary lapse or interruption of the voice. Spasmodic dysphonia is a form of dystonia, a group of neurological movement disorders characterized by involuntary muscle spasms.

There are two types of spasmodic dysphonia: Abductor spasmodic dysphonia and the more common adductor spasmodic dysphonia. The cause of spasmodic dysphonia is not known.

Adams describes it this way:

. . . a problem of the vocal cords going nuts on their own. The net effect is that while I can give a speech to a crowd of 5,000 people, I generally can’t utter more than a hoarse whisper to someone one-on-one. It’s like a stutterer who can sing okay but can’t talk normally.

So what is worrying Scott? Why, that no one will believe him if he is really sick or hurt.

Although I have never had the honor of meeting him, his insight into organizational bureaucracy and wicked sense of humor have made him one of my favorite people.

No worries Scott. We're here for you and we promise to stop laughing if we see blood.

Sacré bleu! Here is a bonne bouche courtesy of the United States District Court for the Middle District of California.

This is the sort of recherché legal question that apparently clogs the dockets of California federal courts, entertains law students and their professors and confirms for every non-lawyer that both the courts and the legal profession have only a soupçon of common sense.

Notwithstanding the recognition of sang-froid by the district judge, I shudder to think of how many billable hours went into this one.

Thanks to Letters from the Bostonian Exile for the link.

British speed camera nabs senior citizen for exceeding posted limit by 770 mph.

The Manchester Evening News is reporting here that a UK retiree was issued a traffic ticket based on evidence of a camera which snapped his vehicle's picture for speeding. According to the speed-cam, he was clocked at 770 mph over the limit. There is no word yet on how the area coped with the sonic boom when the senior speedster made his improbable run into the record books, or what modifications retiree Adalat Khan performed to his Toyota Land Cruiser in order to trip the lights fantastic at 800 mph in a 30 mph zone but the mods must have made the car into something like what is pictured.

The Washington Post suggests moving the National Mall and the Supreme Court "down by the river."

The Washington Post suggests moving the Supreme Court to a new National Mall on the Potomac.

Canada's Chief Justice urges more judicial activism.

The Ottowa Citizen reports here that Canada's chief justice, Beverley McLachlin, says "Judges should feel 'emboldened' to trump the written word of the constitution when protecting fundamental, unwritten principles and rights." In her speech in New Zealand, she took on Canadian critics who say judges have no business going beyond the strict letter of the constitution to strike down laws and enforce rights. "The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion."

Roll your own MINI roof art.

Here’s something to take your mind off of the fact that your GM and Ford stock is tanking.

If you own a MINI or are thinking of buying one - heck, even if you could care less about those things - this site is pretty cool. You may have seen a few MINI's running around with the British flag painted on the roof. In fact, the roof of a MINI makes a great canvas for those with artistic talent and imagination. This "Roofstudio" website, courtesy of MINI USA, will let you view the artstic efforts of others and includes tools to make your own graphic and download a file ready to take to the vinyl printer.

Hat tip to Autoblog.

On-line retailers better not mess with bloggers.

From Concurring Opinions comes this report of an on-line retailer who was apparently blogged right off the web for providing poor customer service to a determined blogger.

You have got to be kidding me!

I'm glad Congress is going take a break from Iraq, Plamegate, bribery scandals and runaway deficit spending to start working on something really important and which is just crying out for congressional interference.

I'm sure you guessed it, they are going to investigate the "deeply flawed" Bowl Champoinship Series.

From Sports Illustrated.

Why can't I be the first in my neighborhood to have my very own nuclear particle accelerator?

From Wired News comes this "Not in My Backyard" story of an Alaska man who wants to put a 20 ton nuclear particle accelerator (AKA a "cyclotron") in his home. Local lawmakers are also rushing to introduce emergency legislation banning the use of particle accelerators in home businesses.

Johns Hopkins University agreed to donate the used cyclotron, which is roughly six feet tall by eight feet wide (slightly larger than the one shown above), to Swank's business, Langdon Engineering and Management.

I suspect that it is the word "nuclear" in the description of the device that has everybody's knickers in a twist. We aren't talking here about something that you can use to build an atomic bomb in your basement. Although they were originally known back in the 1960's as "atom smashers," these things are essentially a circular or oval electromagnetic field that is used to accelerate electrons to a healthy fraction of the speed of light and then send them crashing into a target substance, dislodging a few subatomic particles in the process. While large ones can generate billions of electron volts, the current involved in one this size is relatively modest. The large ones are used to create subatomic particles for study and smaller ones like the one pictured are used to irradiate various substances for later use in the treatment of cancer patients.

What happens to appeals when the court reporter won't do her job?

The Washington Post reports here and the Los Angeles Times here about the predicament that a number of appellants in Colorado's appellate courts are facing because the court reporter refuses to transcribe the record of their cases.

Despite being cited for contempt, a former Arapahoe County, Colorado court reporter refuses to transcribe the trial records of at least eight cases putting the appeals of those cases on indefinite hold. She argues through her attorney that she has no legal obligation to finish the transcripts and for her to be forced to do so constitutes "slavery" in violation of the 13th Amendment.

She left her employment to undergo treatment for breast cancer but is now employed full time as a deputy clerk in the United States District Court in Denver.

**Update** On December 1, even as I was typing the above, the Colorado Court of Appeals affirmed the contempt citation in an opinion which can be found here. Hat tip to How Appealing.

"Hey, kemosabe*. You should try out for the Seniors Edition of 'Jeopardy'!"

Apparently only a few people under 50 can make a perfect score on this one. I had a perfect score but I am well over 50 (and anal to boot!)

Of course you can Google the questions, so we're depending on the honor system here.

1. After the Lone Ranger saved the day and rode off into the sunset, the grateful citizens would ask, "Who was that masked man?" Invariably, someone would answer, "I don't know, but he left this behind." What did he leave behind?_______________________.

2. When the Beatles first came to the U.S. in early 1964, we all watched them on the, _______________ show.

3. Get your kicks, _______________.

4. The story you are about to see is true. The names have been changed ____________________.

5. In the jungle, the mighty jungle,_________________________.

6. After the twist, the mashed potatoes, and the watusi, we "danced" under a stick that was lowered as low as we could go in a dance called the_________________________.

7. N_E_S_T_L_E_S, Nestle's makes the very best, _____________.

8. Satchmo was America's "ambassador of goodwill." Our parents shared this great jazz trumpet player with us. His name was, ____________________.

9. What takes a licking and keeps on ticking _________________.

10. Red Skelton's hobo character was _______________________. and he always ended his television show by saying, "Good night, and _____________________________."

11. Some Americans who protested the Vietnam war did so by burning their_________________.

12. The cute little car with the engine in the back and the trunk in the front, was called the VW. What other names did it go by?_____________________&_________________

13. In 1971, singer Don MacLean sang a song about, "the day the music died." This was a tribute to_________________________.

14. We can remember the first satellite placed into orbit The Russians did it; it was called ____________.

15. One of the big fads of the late 50' s and 60's was a large
plastic ring that we twirled around our waist; it was called the __________ ___________.

ANSWERS:
_________________________________________________________________________

Answers:
01. The Lone Ranger left behind a silver bullet.
02. The Ed Sullivan show.
03. Route 66
04. to protect the innocent.
05. The Lion sleeps tonight.
06. The limbo
07. chocolate.
08. Louis Armstrong
09. The Timex watch.
10. Freddy the freeloader, and "Good night, and may God Bless."
11. draft cards (the bra was also burned)
12. Beetle or Bug
13. Buddy Holly
14. Sputnik
15. hoola-hoop

From Blonde Sagacity.

* Although the Supreme Court of Canada may have the last word on this, "kemosabe" is not a racist slur. Apparently, the term comes from the name of a boys summer camp in Michigan and in Navaho means "soggy bush" or "soggy shrub".

Seattle's Judge of the Year

The Seattle Times has this nice portrait of a Seattle trial judge who's not above taking lots of time, nearly an hour on the day before Thanksgiving, to politely get a seemingly uncooperative defendant to sign routine paperwork and submit to fingerprinting.

Maintaining your cool and a courteous demeanor when everyone else (often including you) is having a bad day, is the mark of a truly great trial judge. It appears that Judge Yu is definitely one of those. I congratulate her on an obviously well deserved honor.

A timekeeping bit of nostalgia.

This "Pong" clock brings back a lot of memories of blowing off law school classes to play this silly game. Hey, back in the '70's, this was the state of the art in gaming.

From Gamers Hell via Gizmodo.

Judge warns - beware of jury duty scam.

This story concerns a Missouri judge who has issued a public warning to his community about a "phishing" scam. These calls are circulating the country from individuals posing as officers of state and federal courts in an attempt to steal personal information that can be used for identity theft.

Typically, the scammer will call an individual claiming they work with a federal or state court and will inform the intended victim that he or she failed to show up for jury duty.

After threatening arrest, the caller will then ask for confidential information - such as a Social Security number, date of birth and credit card number - which they will then use to make purchases, obtain cash, raid bank accounts or even take out loans.

Harry Potter and the Half-Crazed Bureaucracy.

This is a law review article I wish I had written.

Is TV violence against women on the rise?

This article in the Denver Post by TV critic Joanne Ostrow, says "Yes".

An excerpt:

Much of the anti-women violence this season came in network pilots, which are used to sell a series to network executives and advertisers, and to hook viewers on a show.

The shows launched with a burst of violence against women at the hands of aliens, supernatural forces or more common human criminals. The trend was unmistakable. Women were abducted in a car, duct- taped and tortured in a cage ("Criminal Minds" on CBS); yanked from the shower to have a fetus torn from her womb (the now canceled "NightStalker" on ABC); and attacked by spiders unleashed by an assailant who then rapes and kills her ("Killer Instinct" on Fox). One woman spontaneously combusted while pinned to the ceiling of her baby's room by unknown forces ("Supernatural" on the WB).

"Exploiting the damsel in distress as a marketing tool - it's worked since Fay Wray (in 1933's "King Kong")," said Matthew Felling of the Center for Media and Public Affairs in Washington, D.C.

Exploiting women as a marketing tool may be effective, but it is a sad commentary on our society.

Clients from hell are not an American phenomenon.

Gavin at Diary of a Criminal Solicitor posts here about a recent client who was his own worst enemy.

His post brought back some memories of my own of a few clients past where decibel level was the key to the attorney-client relationship.

It looks like the jury trial in Great Britain isn't going away without a fight.

In an earlier post, now vanished into that great black hole where data goes when you least expect it, I noted that Great Britain, which has already abolished the jury trial in civil cases, was in the process of eliminating juries in some criminal cases.

However, according to this story from the BBC, some members of Parliament are objecting.

Activist judge rules for girlfriend.

The story from The Onion via Legal Ethics Forum.

Any comment I might make would be entirely superfluous.

Dilbert's Rules of Debating on the Internet.

Dilbert creator, Scott Adams has posted these rules for debating on the Internet:

1. Turn someone’s generality into an absolute. For example, if someone makes a general statement that Americans celebrate Christmas, point out that some people are Jewish and so anyone who thinks that ALL Americans celebrate Christmas is stupid. (Bonus points for accusing the person of being anti-Semitic.)

2. Turn someone’s factual statements into implied preferences. For example, if someone mentions that not all Catholic priests are pedophiles, accuse the person who said it of siding with pedophiles.

3. Turn factual statements into implied equivalents. For example, if someone says that Ghandi didn’t eat cows, accuse the person of stupidly implying that cows deserve equal billing with Gandhi.

4. Omit key words. For example, if someone says that people can’t eat rocks, accuse the person of being stupid for suggesting that people can’t eat. Bonus points for arguing that some people CAN eat pebbles if they try hard enough.

5. Assume the dumbest interpretation. For example, if someone says that he can run a mile in 12 minutes, assume he means it happens underwater and argue that no one can hold his breath that long.

6. Hallucinate entirely different points. For example, if someone says apples grow on trees, accuse him of saying snakes have arms and then point out how stupid that is.

7. Use the intellectual laziness card. For example, if someone says that ice is cold, recommend that he take graduate courses in chemistry and meteorology before jumping to stupid conclusions that display a complete ignorance of the complexity of ice.

You need only browse the comments section of some of the larger bogs (or even small blogs like this one) to see some of these rules in action.

Sun Tzu says, "A wise general lawyer reads the rules of war court."

Steve at Virginia Appellate News & Analysis interviews Sun Tzu on The Art of Appellate War.

One of Sun Tzu's maxims is "In war, let your great object be victory, not lengthy campaigns."

In the sprit of Steve's clever post, I might paraphrase that as "In appeals, let your great object be persuasion, not lengthy briefs."

Man not dead - will sue. Film at 11.

A Connecticut man who was struck by lightning and who was mistakenly pronounced dead by an ambulance crew plans to sue.

I wonder what the damages are for not being dead in Connecticut.

From Newsday.

When Sending Out Your Jammed Printer For Repair, First Remove the Counterfeit Money.

If people this stupid could make $160,000 conterfeiting, imagine what slightly less moronic criminals could get away with.

From AZCentral.com.

Can perceptions of judges be both pervasive and wrong?

In this post over at Balkanization, Brian Tamanaha comments persuasively on the perceptions (or misperceptions) many people including his students have about judges and the way they go about the job of judging.

He observes that "[e]verywhere you look it seems to be almost taken for granted that the personal values or political views of judges have a determinative impact on their decisions." That view is certainly evident in a recent ABA survey I commented on here.

My favorite part of Professor Tamanaha's post is this quote:

There is no doubt that judges have the power to issue decisions that are based on their personal views, and the skill to couch these decisions in legal argument (the law is indeterminate in this sense at least). And there is also no doubt that certain legal standards by their nature call upon value-based decisions or evoke personal responses from judges. That is a far cry, however, from asserting that judging is just personal politics cloaked in law.

I agree with what Prof. Tamanaha has to say and I have made some of the same observations here and here.

There is no question that there are some judges out there who see themselves as being on a "mission from God" (to quote Dan Akroyd in his Ellwood Blues persona) and who are therefore inclined to adopt an "end justifies the means" approach to judging in order to remake society as they think it should be. I will also grant that since judges are human beings, they cannot help seeing every case through the filter of their humanity and life experiences. Every judge would prefer that the widows and orphans prevail over the slumlords but sometimes the opposite result is compelled by the application of the law. When that happens, should the judge ignore the law to serve their personal sense of justice?

It requires constant discipline to be a judge. The discipline to avoid substituting your judgment about what appropriate public policy should be, for that of officials elected by the people for that very purpose. It isn't easy to resist the temptation to use the power you have and I suppose it is harder to maintain the necessary discipline when you have a lifetime appointment and never have to periodically account to anyone for the way you do your job. This is all the more reason why judges at all levels should be chosen carefully and vetted thoroughly.

Could "Come to New Jersey -- it's not as bad as it smells" become that state's new slogan?

Remember "You have a friend in Pennsylvania" or "Virginia is for Lovers?"

Reuters reports here that, not to be outdone by its sister states, New Jersey is holding a contest for a new state slogan to replace "New Jersey and You: Perfect Together."

With a deadline of today, some of the suggestions:

New Jersey and You, Going Broke Together.
Come to New Jersey -- It's Not as Bad as It Smells.
You Pay, We Play: Compliments of NJ Politicians.
Welcome to New Jersey; Expect Delays.
New Jersey -- a State of Confusion.


New Jersey natives Robert DiNiro and Joe Pesci suggested "New Jersey: You Got a Problem With That?"

Personally, I always liked Joe Piscopo's line from Saturday Night Live - "You're from Jersey? What exit?"

Reading the newspapers so you won't have too.

From the BBC:

It looks like America gets to control the Internet that it designed and built a little longer.


From the Times of London:

Middle class "too superior" for police.


From Rueters via Yahoo News:

It would appear that a sense of humor isn't likely to be found in Kazakhstan.

With A3G exposed, the sun seems to have set on UTR.

Howard Bashman at How Appealing quotes Seventh Circuit Judge Richard A. Posner on the issue that is burning up the blawgs - "What happened to A3G/David Lat?"

For those just tuning in, one of the more popular legal blogs in recent years has been Underneath Their Robes (UTR) and its proprietress, Article III Groupie (A3G). On Monday, Jeffrey Toobin revealed in the New Yorker that A3G's secret identity is David Lat, a Justice Department Attorney in Newark, New Jersey.

Judge Posner notes that he predicted that A3G was male and now predicts that the blog won't survive that disclosure. He is apparently right again since A3G's once popular blog is now password protected and effectively off-line.

I will miss such classic posts as the Male and Female "Superhotties of the Federal Judiciary" and "Cribs" of the judicial elite.

Update: Daniel Solove at Concurring Opinions has posted his thoughts on this subject here and Jaded JD has a thoughtful post on the lesson here for those who expect everyone to blog under their real identities.

I have certainly been dissuaded from revealing that in actuality, I am a paralegal in a Fairbanks, Alaska real estate firm. (Why do I have the feeling that you aren't buying that?)

This is why we should never take a written constitution for granted.

For some 800 years, the Common Law of England recognized the defenses of autrefois convict and autrefois acquit. These ancient legal principles respectively prevented retrial for the same offense after a conviction or after an acquittal.

Because of the long history of these twin doctrines as part of the common law, James Madison, the principle author of our Constitution saw no need to provide for such protections in the original document. However, in an apparently prescient move, a majority of the states required these protections and others be included in a "Bill of Rights" as a prerequisite for ratification of the Constitution. Thus, these common law principles became the Double Jeopardy Clause of the Sixth Amendment.

History seems to have proven Madison wrong. On April 4, 2005, the British Parliament abolished these common law prohibitions against double jeopardy and this story in the London Guardian reports on the first case where a defendant is being retried for murder 14 years after he was acquitted of the crime.

Thanks to CrimLaw for the link.

At MIT, even the student pranks are cerebral.

MIT students, have completed an exhaustive study of whether or not "aluminum helmets serve as the protective measure of choice against invasive radio signals... whether from outside or within the cranium...."

Their findings:

The helmets amplify frequency bands that coincide with those allocated to the US government between 1.2 Ghz and 1.4 Ghz. According to the FCC, These bands are supposedly reserved for "radio location" (ie, GPS), and other communications with satellites.

I suppose that means if you wear aluminum foil on your head, you will never get lost (even though everyone you meet will tell you to do exactly that).

That's one way to pay for all those extra minutes and roaming charges.

When it comes to multitasking, it's hard to beat the woman who can rob a bank and never interrupt her cell phone conversation.

I'll bet all those minutes on the cell phone ate up her ill gotten gains.

Remembering Veterans.

This holiday was originally called Armistice Day, and was established to honor Americans who had served in World War I. It falls on November 11, the day when that war ended in 1918, but it now honors veterans of all wars in which the United States has fought.

Veterans are ordinary men and women who routinely accomplish extraordinary things.

Thank you for always answering the call.

That will teach him!

Already sentenced to two life sentences plus 99 years in prison, Stephen Terry Bolden got another 5 days tacked on for contempt for telling the judge he was being "real rude" to him.

Odds & Ends from around the web.

There is no redeeming automotive value to this flatware, but it definitely falls into the category of “stuff to get the car nut who has everything."





Beer makes your brain grow but the downside is that those extra cells prefer alcohol.








Ok. It's official. According to this, women have a better sense of humor and appreciate a good joke better than men. That would explain why my wife married me.

Does someone you address as "Senator/Colonel/Judge" have a conflict of interest?

USA Today reports here about a case before the U.S. Court of Appeals for the Armed Forces involving Sen. Lindsey Graham, R-S.C., who is also an Air Force Reserve colonel appointed two years ago to the lower Air Force Court of Criminal Appeals.

Lawyers for Airman 1st Class Charles Lane are seeking to throw out Lane's cocaine conviction on the grounds that Graham, one of three appellate judges who reviewed his case, is "constitutionally and ethically disqualified" to serve.

In court papers, Lane's lawyers argue that "Senator/Judge Graham cannot be an impartial and disinterested judge" because he is "politically accountable to his constituents for anything he does." Graham declined to comment on the case's merits. "We'll live with whatever the court says," he said.

"Hello, you have reached customer defendant service. Press 1 if you are charged with burglary....."

Gavin at Diary of a Criminal Solicitor reports that the British Legal Services Commission is beginning a pilot program to determine whether it is feasible to offer legal advice to those arrested and in custody at a police station through a call center.

If they actually go through with this, I suppose it is only a matter of time before this is outsourced and you wind up talking to a solicitor in Bombay.

It's official - fighting is an integral part of the sport of hockey.

Steve at Virginia Appellate News & Analysis and who apparently is a big hockey fan, reports on the case of Norfolk Admirals v. Jones from his state which apparently officially declares that fighting is part of the sport of professional ice hockey.

Personally, it never occurred to me that there was any question about it. I remember an old joke about going to a fight when a hockey game broke out.

I thought it was the right to bare ARMS.

A federal judge on Friday denied a request from a group of Mendocino women who wanted to protest topless on the grounds of the state Capitol.The group, Breasts Not Bombs, had scheduled a protest for noon Monday and argued that their right to protest topless was protected by the First Amendment.

From the San Francisco Chronicle.

What does 7-11 put in those things?

The Washington, DC Police Department is investigating an early-morning fight that supposedly started over a burrito.

Police said a man inside the store didn't have enough money to pay for his burrito and left the store to get more. While he was outside, another of the store's patrons decided to buy that burrito.

An eyewitness said when the man came back into the store, he became livid that someone had bought his burrito and the fight escalated from there.

Police said the fight then spilled outside the store and at some point, the girlfriend of the original purchaser opened a car door and released a 75- to 80-pound pit bull, which bit three men, including an innocent bystander.

Via NBC4.com

I'll bet the dog wound up with the burrito.

Dress for success - NOT!

A man suspected of stealing discs from a video store was tripped up by his baggy pants, falling twice before police captured him.

From the Associated Press.

Albanian Air Force for sale - It has distinguished itself by killing 35 Albanians, no enemies.

From Reuters:

"Albania's antiquated air force of Soviet-designed MiG aircraft, which killed 35 Albanian pilots but no enemies, is finally on its way to the museum and the scrapheap. 'If anyone wants to buy them, they are welcome,' General Pellumb Qazimi told Reuters. 'The Chinese-built versions were dangerous,' said Perikli Teta, Albania's air force engineer-in-chief."