If this doesn't doom the Robert's confirmation, nothing will.

(At the risk of stating the obvious, this is a parody.)

Should New Orleans be rebuilt?

With the city virtually a total loss, this question is being asked in the media and in the blogoshere. After all, the location of the city by the French never made a whole lot of sense. It is hot, humid, dirty, corrupt and even before Katrina, a lot of its industry had moved out of the city.

Despite all this, in my humble opinion the answer to the question is "Yes!"

With all of its faults, the city has always had a soul to go with its completely unique personality and 300 years of history and culture. I doubt that it will ever again be what it was but just bulldozing what is left would be a shame. It will take a long time but given the examples of Chicago (rebuilt after a fire destroyed most of it in 1871) and San Francisco (rebuilt after it was pretty much leveled in the 1906 earthquake), I think NOLA still has a future.

New Orleans Police vs. Looters - If you can't beat them, join them?

These related stories in the New Orleans Times-Picayune paint a sobering picture of police officers who just can't deal with the massive looting in the Crescent City in the aftermath of Hurricane Katrina.

It appears that at least some of them have become looters themselves.

New British law student blog.

With all of the blogs detailing the trials and tribulations of American law students, this student at the Law School of the University of Reading in Berkshire, England noticed that no one was doing the same thing for budding British barristers (how was that for alliteration) and decided to fill the void.

My favorite entry on this blog so far is his quotation of Lord Justice May's disapproval of the use of Latin terms in the Court of Appeal (Fryer v Pearson, 2000):

"Mr Reade was perfectly able, as one would expect, to express clearly in English the very straightforward legal principles which are for consideration in this appeal, without being in danger of obscuring them by high-sounding Latin of little content."

Amen! (I know a few appellate judges who would also benefit from this admonition.)

Another example:

"[L]aw students are expected to read cases up to 816 years old (1189 being officially time immemorial) (basically from the time guys were robbing from the rich and giving to the poor while running around Sherwood Forest in green tights).

I would be satisfied if the students I teach just read the cases I assigned (sigh).

The future is now (with apologies to the late great Coach George Allen).

The Tom Cruise vehicle, Minority Report, painted a near-future cinematic picture of a law enforcement unit predicting murders before they occurred and catching the criminals before they committed the crime.

This link via Wired News demonstrates that this scenario wasn't quite as far-fetched as you might think with this Yonkers Journal News story of police departments using PC's to accurately predict where a crime will occur next and dispatching police to the area to wait for it to happen.

"Hey Barista - I'll have a whipless triple-shot Mega Venti Grandissimaximo Giganto de Humongo-Rama-Lama-Ding-Dong wet cap on a leash."

Any comment I make here would be completely superfluous.

This just might be the way to get me to exercise.

NeXfit has built a series of stationary exercise bikes that allow you to surf the web or play games on your PC, Playstation or X-box as you pedal away. Two of the models contain a "Blue LED Light, which turns on according to users' heartbeat" along with a "Force feed back system, which delivers 16 different shock levels according to collisions and explosions in any PC game."

This of course would enable me to monitor any heart attack induced by the shock of being blown away in "Splinter Cell."

Thanks to Gizmodo for the link.

As if I needed another reason to feel old....

Beloit College has released its annual "mindset list" for this years college fressman class.

Some highlights:

1. Andy Warhol, Liberace, Jackie Gleason, and Lee Marvin have always been dead.
2. They don't remember when "cut and paste" involved scissors.
3. Heart-lung transplants have always been possible.
4. Wayne Gretzky never played for Edmonton.
5. Boston has been working on "The Big Dig" all their lives.
6. With little need to practice, most of them do not know how to tie a tie.
7. Pay-Per-View television has always been an option.

10. They are more familiar with Greg Gumbel than with Bryant Gumbel.

16. Voice mail has always been available.
17. "Whatever" is not part of a question but an expression of sullen rebuke.
18. The federal budget has always been more than a trillion dollars.
19. Condoms have always been advertised on television.

22. For daily caffeine emergencies, Starbucks has always been around the corner.

24. Money put in their savings account the year they were born earned almost 7% interest.
25. Bill Gates has always been worth at least a billion dollars.

29. The Starship Enterprise has always looked dated.
30. Pixar has always existed.

32. Judicial appointments routinely have been "Borked."

36. It has always been possible to walk from England to mainland Europe on dry land.

39. American Motors has never existed.

41. Les Miserables has always been on stage.

49. Libraries have always been the best centers for computer technology and access to good software.

54. They never saw the shuttle Challenger fly.
55. The TV networks have always had cable partners.

57. Black Americans have always been known as African-Americans.
58. They never saw Pat Sajak or Arsenio Hall host a late night television show.

62. Tom Landry never coached the Cowboys.

64. CNBC has always been on the air.

70. Jimmy Carter has always been an elder statesman.
71. Miss Piggy and Kermit have always dwelt in Disneyland.

75. They have always been challenged to distinguish between news and entertainment on cable TV.

Justice Stevens a textualist?

The New York Times carried this story yesterday reporting that United States Supreme Court Justice John Paul Stevens, in a speech to the Clark County Bar Association in Las Vegas, criticized his own majority opinions in Kelo v. City of New London and Gonzales v. Raich which respectively upheld the use of eminent domain power to take private homes for commercial development and upheld the federal government's right to statutorily trump Californians law permitting possession of marijuana for medical use.

Justice Stevens called his decisions "unwise," but noted "in each I was convinced that the law compelled a result that I would have opposed if I were a legislator."

Zealously representing the client by making sure he goes to prison.

This post from Diary of a Criminal Solicitor in Great Britain presents what would be an interesting ethical issue in America.

The client was convinced that the only way he would ever kick his drug habit was to go to one of Her Majesty's prisons for awhile so the solicitor found himself "acting like a prosecutor" by pointing out the egregious criminal record and suggesting reasons why bail would not be appropriate and eventually getting a "Thank You" from the client when the solicitor successfully convinced the Magistrate to remand him to prison.

Thanks to Skelly at Arbitrary and Capricious and Ken at CrimLaw for the link.

Turn the tables on telemarketers.

A website in the Netherlands has posted this "counterscript" to use when telemarketers call. Scroll down to see the color coded layout.

Telemarketing is obviously a problem well beyond our shores since this is posted in six languages - Dutch, English, Swedish, Hebrew, Belgian and Finnish.

The Queen goes green.

The London Sunday Times reports here that Queen Elizabeth plans to heat Buckingham Palace with geothermal energy.

I'm afraid I lost it when I got to "Sir Elton John installed a borehole on his 39-acre estate in Windsor in November 2003."

I guess they are easier to bring down than an Impala - at least the ones made by Chevrolet.

Yahoo news has this report that the lions at an English safari park are "prowling after Smart cars, in the apparent belief that the boxy little two-seat European city cars are worthy prey."

After all those years in which the British Land Rover chased down the lions on safari, I suppose its payback time.

Judge Crater found?

75 years after he was last seen getting into a taxi after having dinner, New York Supreme Court Justice Joseph Crater may have been found according to a New York Daily News story here. MSNBC reports the same story here.

Where has he been? Apparently under the Coney Island boardwalk according to a "Do Not Open Until My Death" letter left by a woman who died in June. According to the letter, Crater was killed by a cab driver and his police officer brother and buried under the boardwalk at Coney Island.

I won't ever think of the old song by the Drifters the same way again.

Kudos to Bashman

One of the best of the many publications that regularly cross my desk is the Journal of Appellate Practice and Process which is published by the William H. Bowen School of Law at the University of Arkansas at Little Rock

In the current issue, Howard Bashman of How Appealing fame has an excellent article on the subject of "Recusal on Appeal: An Advocate's Perspective".

Howard presents a balanced and thoughtful overview of the dilemma of a litigant who believes they have a good reason to question a judge's impartiality or raises a circumstance that might cause the public to reasonably question that impartiality. If you do appellate practice or are an appellate judge, it is worth a read and I recommend it to you highly.

I would like to comment here on one point that Howard made. He writes, "a less than compelling and, and thus unsuccessful, recusal request could cause an appellate judge to harbor resentment toward the party which claimed that the appellate judge was incapable of being fair. After all, judges are only human. And therefore, a recusal request that unsuccessfully challenges a judge's impartiality can serve as a self-fulfilling prophecy."

The use of the word "could" makes this statement irrefutable and it no doubt occurs on occasion but, bearing in mind that I am what Article III Groupie at Underneath Their Robes calls "an icky state judge" and therefore my frame of reference may be different when compared to the deities on the federal bench, my own experience doesn't support Howard's broad statement.

My experience, both personal and as observed with respect to other members of my court, is that when a timely recusal request is made, a judge immediately does a "gut check" to see if they really have such a bias or if a reasonable perception of bias exists and if so, I/they will recuse themselves immediately. There are usually enough judges and cases to go around that switching off isn't a problem.

If the request isn't timely, then a lot of work likely has already gone into the case and although recusal will still occur, the new judge who picks up the case and the rest of the panel will be underwhelmed by the level of professionalism of the lawyer and that never helps your case. Likewise, if the reason for recusal was "less than compelling" (e.g. "You once worked as a prosecutor so you obviously cannot be fair to criminal defendants"), the motion won't likely be granted and you won't have much credibility with any of the judges on the panel. I would not equate the assessment of credibility or professionalism of the lawyer with a "self-fulfilling prophecy" of bias. It is simply another factor along with things like the quality of the brief and thoroughness of research that also bear on the credibility of the advocate with the court.

As I tell every bar group I speak to, the credibility (in this context meaning reputation for professionalism) of the advocate with the court, as exemplified by the quality of the brief and argument and adherence to the rules of court, is the single biggest factor in whether a court accepts or rejects a legal argument.

All the kings horses and all the kings men won't get this lawsuit back on track again.

Overlawyered reports here that the 10th Circuit has upheld both a partial summary judgment awarded Southwest Airlines and the jury verdict in favor of the airline in a suit brought by two passengers who alleged that they suffered emotional and physical distress when a flight attendant recited "a nursery rhyme with a racist history."

In an attempt to get the passengers seated so the plane could depart, the flight attendant announced over the intercom, "Eenie, meenie, minie, mo, pick a seat, we gotta go."

The 10th Circuit's opinion can be found here.

N.B. Okay, I know I have been prolific (for me) in posting today but that is only because I took the day off, roughed out a first draft of my portion of an appellate advocacy book I am collborating on and decided to celebrate by spending lot of what was left surfing the blogs (as you can see). Don't get used to it.

50 mpg AND 0-60 in less than 4 seconds. Wow!

Of tangential interest to anyone who thought this post regarding 250 mpg hybrid cars was interesting, Autoblog has this story about a 300 horsepower electric/diesel hybrid supercar that does 0-60 in less than 4 seconds and gets 50 mpg.

The best part of the story - this car was built by 6 West Philadelphia High School students.

I don't know about you but I'm impressed.

Subatomic particle takes out M1A1 Abrams tank?

Via One Hand Clapping - a strange mystery from Iraq.

It doesn't slice or dice but it does do jullienne fries and surf the web.

Froma Gizmodo comes this report of German ingenuity. Keep a computer cool by immersing it in a fish tank full of grease.

Who the heck builds a pipe bomb for fun?

From MSNBC comes this story of a man arrested for trying to carry a pipe bomb in his luggage on a flight from Oklahoma City to Atlanta.

His story - he built it "for fun" and forgot it was in his luggage. Sure!

A little perspective

I don't do political commentary and I hope this doesn't qualify but I have heard a bit of grumbling from friends and neighbors about the "failure" of the Iraqis to write a constitution by the original deadline and I wanted to get some observations about that off my chest.

We should all note that it took some time - 16 months - for the Third Continental Congress to come up with the Articles of Confederation (which were something of a disaster). It then took another 11+ years after that (for a total of 13 years from our Declaration of Independence) to draft and ratify our current Constitution and we weren't trying to blow each other up while we were doing it.

OK. I feel better now.

Scary Video - Fortunately No One Was Hurt

If black boxes survive air crashes – why don't they make the whole plane out of that stuff?
— George Carlin

The website of the National Weather Service has posted this incredible animated GIF image from Japan of a passenger airliner being struck by lightning. Apparently no one was hurt.

Here's a Macabre Collectible - Death Row Last Meal Plates

From Yankow Design comes this item that no gourmand should be without - food trays that have the portraits and the last meal requests of 310 different Texas death row inmates.

In their own words:

In an exploration of potential museum experiences, the museum of capital punishment was invented. “last meals” is an installation that attempts to bring first hand experience to the table through 310 unique portraits of those executed in the state of Texas. The contents of the menu are comprised of the actual meals requested by prisoners killed on death row thus far. The trays portray a vivid portrait of the prisoners and the incidents that led them to their prosecution. The experience is further pushed, as one sits at confined dining units to digest the full scope, complexity, and finality of that moment. For those who do not have the appetite for this experience there are plenty of declined meals. Collect all 310 souvenir trays.

I don't know which is worse - their taste or the sales pitch.

With This Blog, I Thee Wed

From About.com comes this article suggesting that in Texas it is possible to be married via Blogger and/or Movable Type.

The bride's vows can be found on Movable Type here and the grooom's vows on Blogger here (Movable Type for her and Blogger for him - obviously a mixed marriage).

It's an interesting notion since there isn't much you can't do on the Internet these days but, although I am hardly an authority on Texas law, I am a bit skeptical since the article only quotes the "bride" baldly asserting its legality.

Call me cynical but somehow I doubt a Texas divorce is this easy.

250 Miles Per Gallon with Big Brother Watching All the Way

Here are links to a couple of tech articles from the AP posted on Yahoo News this evening that I found both interesting and strangely ironic:

Hybrid Cars getting 250 Miles Per Gallon

Security Cameras multiplying like rabbits in Manhattan

Finally! A protected class I am a member of

God forbid you be an ugly girl, 'course too pretty is also your doom, 'cause everyone harbors a secret hatred for the prettiest girl in the room.
- Ani Difranco, Singer and Song Writer

So I'm ugly. So what? I never saw anyone hit with his face.
- Yogi Berra, American Philosopher, Baseball Player and Manager

Craig Williams at May It Please the Court observes that "[y]ou can add 'ugly' to the protected classes of race, color, religion, sex, national origin and age, according to the California Supreme Court, who issued this opinion earlier this week in the case of Yanowitz v. L'Oreal."

Judges in Film

Over at Picturing Justice, Judge J. Howard Sundermann, Jr., an Ohio appellate judge, has posted an interesting article concerning the increasingly negative way in which judges are depicted by Hollywood.

An exerpt:

There have been two major changes in the treatment of judges in film since the 1970s. First, we are now part of the main story line to a far greater degree, if not the main character in the film. Second, unfortunately, the changes have not been to our advantage, for the most part. Judges often now seem to be portrayed as lazy, corrupt, biased and arrogant. Of course there are some judges who are like this, but not to the extent that the movies would suggest.

If you haven't yet discovered it, Picturing Justice is an interesting compendium of commentary on the way lawyers and the legal system are treated on both the silver screen and television.

Just because they take a bite out of crime doesn't mean that you have a right to cross-examine them.

I'm sure you'll all be relieved to hear that the sovereign State of Washington has determined that a dog is not a hearsay declarant for purposes of the Confrontation Clause and Crawford v. Washington .

In this case from the Washington Court of Appeals, the court found that the defendant was not deprived of his right to confront his accuser when the trial court admitted testimony from the dog's handler that the dog tracked the scent of the defendant from the scene of a burglary to the point in some nearby woods where the defendant was hiding. The appellant had argued that the dog was the actual witness.

I can only imagine the cross-examination that we will now miss out on:

Q. - "Isn't it true that you once mistakenly alerted on a Purina jerky strip?"

A. - "Woof."

Q. - "No further questions."

Just when you thought it was safe to reenter the blogosphere...

I don't want to achieve immortality through my work. I want to achieve it through not dying.
- Woody Allen

I have recovered sufficiently from minor surgery on a torn tendon to be able to manipulate a keyboard and mouse again. And so, after reading the very kind comments to my "final" post and because I find I really miss blogging, I decided to attempt a comeback, though likely at a much reduced level (I used to try to blog daily like Ken Lammers and Steve Minor but I don't think I can keep up with those guys).