Merry Christmas to all ....

I note from my Sitemeter logs that, despite residing near the bottom of the blogging food chain with the other Wiggly Worms of the TTLB Ecosystem, HOWT has around four dozen dedicated readers from all over the the country and throughout the world. In fact, it seems that I have regular readers on every continent except Antarctica.

Given the peculiar nature of this blog, I am a bit amazed that my regulars can be found in places as disparate as Colorado Springs, Colorado and Paris, France; Plano, Texas and Karabk, Turkey; Waipahu, Hawaii and Surrey, England; Lynchburg, Virginia and Sydney, Australia; Dublin, Ireland and Sao Paulo, Brazil.

So as I get ready to take a Christmas break from both my day job and 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
เมอรี่คริสต์มาส และสวัสดีปีใหม่
Geseënde Kersfees
Gezur Krislinjden
Noeliniz Ve Yeni Yiliniz Kutlu Olsun

How many British politicians does it take to clean up a broken light bulb?

With little of the empire left to micromanage, a commission of the British House of Commons has turned its attention to creating a 10 step guide to tell the descendants of those who weathered the blitz how to deal with a broken light bulb.

Nick Harvey, the spokesman for the parliamentary commission, said that the guidelines were necessary, because "there had been an incident where a light bulb had been broken and placed in a waste paper bin. Someone had picked it out and cut their finger."

I think their next project should a a 10 step guide on how to dispose of the first 10 step guide in order to prevent a paper cut.

Will law professors rule the world?

Believe it or not, it could happen.

As Jeffrey Lipshaw notes here in a post over at Concurring Opinions, it is possible that, this time next year, the two most powerful nations on the planet will be in the hands of former law professors.

Barrack Obama taught constitutional law for a short time at the University of Chicago Law School while Dmitri Medvedev, the heir presumptive to Vladimir Putin as President of Russia, also had a previous incarnation as a law professor.

I shudder to think of what the State of the Union address would look like with footnotes and after peer review.

Law professors (like judges) are generally not known for their comedic talent but in a comment to his own post, Professor Lipshaw imagines the following exchange between President Obama and President Medvedev:

Obama: How should we deal with nuclear testing?

Medvedev: 60% essay; 40% multiple choice.

There you have it, Jeffrey Lipshaw, Boston's answer to Jay Leno.

Per Curiam Opinions: What's the [counter]point?

Howard "Energizer Bunny" Bashman (see the current issue of the ABA Journal (print edition) for the source of his "handle"), has another of his thoughtful columns over at Law.com questioning the use of per curiam opinions by various appellate courts.

As Howard notes, per curiam (Latin for "by the court") opinions are simply those usually short opinions which don't indicate their authorship by a particular judge or justice.

Howard speculates about the possible reasons why a court may issue an opinion per curiam and his column is well worth the read so I won't replay them here. What does come through loud and clear in Howard's piece is the basic frustration of any appellate specialist - those who make a long and successful career out of studying every nuanced sentence written by every appellate judge they practice before - generated by not knowing who wrote an opinion. The very best appellate lawyers, such as Howard, do everything short of a gas chromatograph examination of every judicial opinion with the goal of predicting how these men and women will react to future arguments they might make and as a means of dissecting who among the members of a particular court might pull some of their colleagues with them on a particular issue. There certainly isn't anything wrong with that but they are hardly considerations that should drive a court's policy or procedures.

I do agree with Howard on one central point that he makes. It is problematic for a court to issue a per curiam opinion to establish precedent. While such an opinion has the same force of law as any other opinion, the perception for some reason is otherwise.

On my court, per curiam opinions never have any precedential value. They are used whenever a case is disposed of summarily and in other circumstances where there are no significant legal issues to resolve and no particular judge is assigned the case. In virtually all of such cases, the opinion is brief, usually only a few pages, and mostly boilerplate prepared by a staff attorney after the court has made its decision.

Howard proposes one solution in his column - eliminate per curiam opinions altogether. Of course, another solution is to make every court opinion per curiam. Doing so might reduce the number of judicial rock stars but then what would appellate lawyers and law professors ever find to talk about?

Seventh Circuit refuses to bail out DOJ and the district court judge for their own screwup.

In an opinion by Chief Judge Frank Easterbrook, the Seventh Circuit found itself compelled to spank the District Court, the United States Attorney for the Eastern District of Wisconsin and the the Federal Bureau of Prisons in one fell swoop.

It seems the Seventh Circuit reversed and remanded for re-sentencing consistent with the federal guidelines, a case involving Ramon Reyes-Sanchez, an illegal alien who re-entered the country after being deported. After remand, neither the District Court nor the U.S. Attorney did anything about getting the case back on the docket and after the defendant served his original erroneous sentence, he was released by the Bureau of Prisons and deported by the Department of Homeland Security.

The U.S. Attorney asked the Seventh Circuit to vacate its mandate and reinstate the previous (and erroneous) sentence because "otherwise [the case] will loiter on the district court’s docket until Reyes-Sanchez again illegally reenters the United States, is caught, and is compelled to resume serving time in this case."

In denying the government's request, the Court notes as follows:

It is not clear to us why leaving this case open on the district court’s docket is a bad thing. The prosecutor and district judge have themselves to blame for any untidiness. The district judge should have implemented our mandate without the need for prodding by the prosecutor—though the prosecutor could and should have reminded the judge about the need to act before Reyes-Sanchez was released. Meanwhile the United States Attorney should have notified the Bureau of Prisons and the immigration officials about the impending resentencing. Both the United States Attorney’s Office and the Bureau of Prisons are components of the Department of Justice, not hostile sovereigns that keep secrets from each other. (The motion’s assertion that "[t]he United States did not learn of the defendant’s release and deportation until May of 2007" is hard to fathom: the Bureau of Prisons and the Department of Homeland Security are part of “the United States”.)

Ouch!

Hat tip to Simon at Stubborn Facts.

Appeal dismissed based on the "Slubby Mass Rule."

In a recently decided case, the Ninth Circuit dismissed an appeal based upon what has come to be known out on the left side of the country as the "Slubby Mass Rule"

In case you slept through that Appellate Advocacy class in law school, this "rule" provides that any pleading presented to an appellate court that constitutes "a slubby mass of words rather than a true brief" will be rejected.

The term originated in N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) where the Ninth Circuit declared that "[i]n order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief." N/S Corp., 127 F.3d at 1146 ("the violations are legion); see also id. ("Enough is enough"). The rule was reiterated five years later in In re O'Brien, 312 F.3d 1135, 1136-37 (9th Cir. 2002) (declaring brief "inadequate" and partly "unintelligible"). These cases represent apparently less than successful attempts by the Ninth Circuit to communicate the message to appellate lawyers that filing a crappy brief serves neither their client's interest nor that of the administration of justice. I can only add an "Amen!" to that.

The appellant's brief in question was filed in Sekiya v. Gates, a disability-discrimination case originating in Hawaii. That also seems to have been the limit of what the court could glean about the case from Sekiya's brief, since it:

• Made "virtually no legal arguments" (not a good way to start);


• Did not state the applicable standard of review;


• Failed to include a table of contents;


• Failed to include a table of authorities -- unsurprising since it also


• Did not cite any authority;


• Omitted accurate citations to the record; and


• Didn't explain why Sekiya thought she should prevail except to say she "disagreed" with the trial court.

Now that we've got that straight, the only remaining question is "What the hell does "slubby" mean?"

Hat tip to the California Blog of Appeal.

Censoring Santa.

Apparently in Australia, Santa Claus is barred from greeting children with his traditional "Ho, ho, ho" and instead must substitute "Ha, ha, ha." The ostensible reason is that the traditional greeting scares the children. Most suspect that the actual reason is that "ho" is also American slang and in that context, is a derogatory term for a woman.

I am more inclined to buy the unofficial reason because in my own experience small children are scared of Santa Claus, not because he says "Ho, ho, ho" but instead because he is a big, fat, hairy stranger in a red suit!

If political correctness is going to be the order of the [holi]day, I suggest that it might be more politically correct to stop using the word "ho" with respect to women lest we offend Santa.

Just call me a rebel with a Claus. (Okay, I'm sorry for that one but I just couldn't resist.)

This is not good news.

Scott Adams is one of my favorite people and definitely my favorite cartoonist. His witty barbs strike a chord (or a nerve) with anyone who has worked in a bureaucracy, whether in the private sector or in government and he maintains his humorous outlook despite whatever life throws his way. I love Dilbert as a daily read and own all of the book collections. Scott's Dilbert Blog has been a regular stop for more than a year now.

So I was not happy to learn that Scott is severely curtailing his blogging efforts. I understand his reasons and accept his logic for cutting back but I will miss my daily Scott Adams post.

Supreme Comedy

Things must be slow at the Yale Law Journal. In an article in that august publication's on-line version, Jay Wexler reports that he has "calculated the number of times during the 2004-05 Term of the Supreme Court of the United States that each Justice said something that caused enough chuckling in the courtroom to inspire the Court Reporter to insert the notation “(Laughter)” into the transcript."

In summary, the three funniest justices, based upon audience reaction, are Justice Scalia (54 laughs/term), Justice Breyer (30) and my personal favorite, the new Chief Justice, John Roberts who finishes his first complete term in third place (19).

I doubt any of them will be subbing for Jay Leno anytime soon.

My favorite part of Wexler's piece is this quote:

Although the Court Reporter continues generally to use the phrase “(Laughter)” to indicate courtroom hilarity, this past March the Reporter suddenly started to vary the formulation. Following a wisecrack from Justice Roberts in an argument on March 19, the transcript reads “(A little laughter.).” A week later, the courtroom apparently experienced “(Some laughter.)” after a joke from Scalia. What’s next? “(Knee-slapping guffaws)”? “(Some peeing in pants)”? The Reporter’s actions would appear to be a direct response to the study, which complained that the transcript “does not distinguish between types of laughter, either in terms of duration or intensity.” It may seem a small change, but for those who care deeply about Supreme Court humor, the importance of the Reporter’s innovation cannot be overstated.

It just reinforces the importance of making an accurate record.

Hat tip to Glenn Reynolds.

Did he really think the GPS knew how wide his truck was?

I'll never understand why some people blindly follow the spoken directions of a GPS without regard to the laws of physics or common sense.

From the Daily Mail comes the story of Yuri, the Czech driver of the lorry (truck to us) pictured at right. It seems that Yuri spent three days in the cab of his truck when he blindly followed the directions from his GPS down a lane in Devon, England which was obviously not wide enough to handle his vehicle.

The moral of the story is that the best GPS accessory is a pair of human eyes.

The Rip Saw could be yours.

0-60 in 3.5 seconds, a top speed of 80 mph, the ability to drive through a building like it was a refrigerator carton and the advantage of being able to park anywhere you damn well please. All for only $200,000.

The Rip Saw was built for the 2005 DARPA Grand Challenge (it didn't win but turned a few heads all the same).

More information and video of the Rip Saw in action can be found at the Howe and Howe website.

Here's a little dash of irony.

I can't possibly add anything to this.

Unidentified burglar 0, vigilante gator 1.

Sometimes you're just better off staying in bed instead of going out on a crime spree.

It seems an unidentified thief was (allegedly) burglarizing some cars behind the Miccosukee tribe's resort and casino in Dade County, Florida.

His choice of criminal venue was singularly uninspired. It seems that some witnesses called the local Native-American gendarmes and the boys in blue arrived on the scene and gave chase. Hoping to elude the Miccosukee tribal police, the suspect dove into a pond behind the resort where he was greeted by a 9-foot alligator unfamiliar with the concept of Miranda rights. Unfortunately for the suspected burglar, the gator was of the aggressive and unpleasant variety, and thus, a budding career criminal came to an unexpected and grisly end.

Unfortunately for the vigilante gator, Florida fish & wildlife reps saw to it that he followed his erstwhile prey into the afterlife.

Which British laws are the most ludicrous? The vote is in.

The BBC reports that our cousins across the pond have voted on what they regard as the most ludicrous laws on their books:

Those they consider the most daft are (drumroll, please):

1. It is illegal to die in the Houses of Parliament.

2. It is an act of treason to place a postage stamp bearing the British king or queen's image upside-down.

3. It is illegal for a woman to be topless in Liverpool except as a clerk in a tropical fish store.

4. Eating mince pies on Christmas Day is banned. (This one apparently dates back to the days of Oliver Cromwell).

5. If someone knocks on your door in Scotland and requires the use of your toilet, you are required to let them enter.

6. In the UK a pregnant woman can legally relieve herself anywhere she wants, including in a policeman's helmet.

7. The head of any dead whale found on the British coast automatically becomes the property of the King, and the tail of the Queen.

8. It is illegal not to tell the tax man anything you do not want him to know, but legal not to tell him information you do not mind him knowing.

9. It is illegal to enter the Houses of Parliament wearing a suit of armour.

10. It is legal to murder a Scotsman within the ancient city walls of York, but only if he is carrying a bow and arrow.

On this side of the Atlantic, some of my personal favorites are:

1. Louisiana law recognizes two kinds of fruit but only one of them is "natural." (Insert your own joke here.) Louisiana Civil Code §551.

2. New Jersey requires a license if you are in business to "break eggs" for any purpose. (Do you suppose Tony Soprano bothered to get a license - oh, sorry that was "break eggs" not "legs.") New Jersey Statutes §24:11-1.

3. In Michigan, using pictures of dead presidents to sell liquor is illegal. (Of course you still need to use pictures of dead presidents to actually buy the liquor). Michigan Compiled Laws §750.42.

Another reason NOT to elect judges.

A pastor running for a Philadelphia judgeship (where you apparently don't have to have any legal training to sit on the bench) told potential donors a while back that they should contribute to his campaign for Traffic Court judge because they were "going to need [him]" later.

If Willie Singletary gets the job, (he is the Democratic nominee), he will have to walk to work or take public transportation since his driver's license is suspended until at least 2011 for owing (as of last April) $11,427.50 in fines for 55 violations including reckless driving, driving without a license, careless driving without registration, and driving without insurance.

From CBS News.

OMG! Chu Chu! EOM.

Robert Gillespie is a multitasker. He apparently can drink heavily, then drive and text messages to his friends at the same time. He just can't do them both very well as he found out when he looked up from the text message he was sending on his cell phone just in time to see the freight train he crashed into.

Another Darwin Awards wannabe.

This might be a good time for the plaintiff to see if that last offer is still on the table.

Anyone who has ever sat through an entire trial can appreciate this poor juror's frustration. I assume the judge had to boot the juror, but was probably nodding while he read this juror's letter, saying, "I'm with you, brother."

This is a transcription of the handwritten original;


Your Honor,

I am tired of spending day after day wasting my time listening to this bullcrap. This is cruel and unusual punishment. The plantif (sic) is an idiot. He has no case. Why are we here? I think my cat could better answer these questions . . . and he wouldn’t keep asking to see a document.

I’ve been patient. I’ve sat in these chairs for 7 days now. If I believed for a second this was going to end on Thursday I might not go crazy. This is going to last for another 4 weeks. I cannot take this. I hate these lawyers and prayed one would die so the case would end.

I shouldn’t be on this jury. I want to die. I want to die!! Well not die for real but that is how I feel sitting here. I am the judge, you’ve said that over and over, well I am not fair and balanced. I hate the plantif. His ignorance is driving me crazy. I know I’m writing this in vain but I have to do something . . . for my sanity. These jury chairs should come with a straight jacket.

An entire day today and we are still on the same witness. The defense hasn’t even started yet and we have 3 days left 3 days my ass. Not that the defense needs a turn considering the plantif and his lawyer (who looks like the Penquin (sic)) have no case!!!! Thanks for letting me get this off my chest. Please keep the disordelies (sic) nearby. I may need them.

Juror #5

Via iComo

What does Wagner's operatic hero Seigfried have in common with a psychopathic mass murderer? I don't know either.

The Vlaamse Opera (The Flemish Opera) is advertising its new production of "Siegfried" with a poster which includes a photo of a threatening Seung-Hui Cho. Cho is the man who murdered 32 of his fellow students at Virginia Tech in a rampage in April of this year.

I am not an opera fan and I suppose many opera companies are trying to fill seats by making the artistic medium more "relevant" but I don't find anything the least bit Wagnerian in the actions Cho and as far as I'm concerned, this poster is in very poor taste.

** Update - As of November 11, 2007, the picture of Cho pointing a gun had been removed from the opera's website.

*** Update #2 - As of November 26, 2007, the picture of Cho pointing his gun is not only back on the opera's website, it has been enlarged a bit.

Apparently being a wizard in Great Britain pays pretty well.

Robert Brett-Deans says he is a wizard but prefers to be known as "The Jason." Unfortunately The Jason finds himself in a spot of trouble with the local constabulary in Croydon.

What did the wizard formerly known as Robert Brett-Deans do? He's been charged with one count of conspiring to commit false imprisonment and two counts of possessing the proceeds of crime. Although The Jason has no fixed address, police found £500,000 ($1,000,000 US) in cash, along with sledgehammers, balaclavas, superglue, rope and batteries. I don't know if The Jason went to Hogwarts but despite having read all of J.K. Rowling's books, I have no idea what kind of spell would require ingredients like these but apparently the result is a lot of money.

Here's what The Jason told the Court:

I'm serious about everything I do. I am also a wizard of the Round Table and I am a master manipulator. In other words, I can do magic.

There will be no white flag going up on my ship and I will also help you all so I can put your minds at rest. I'm not playing games with you all. I do not play games.

In mythical terms, be careful in everything that you might do because you might just find yourselves opening Pandora's box and, as you might know, the only thing left in the box was hope.

To the police detectives, The Jason said "I wish you good luck because you will need it." So is he fit to stand trial? Yes, according to a psychiatric report. Is he a wizard? Well if he is, I guess he won't be in jail long.

What's in a name? For $25,000, apparently not much.

The University of California at Berkeley has a very good law school, long known far and wide in legal circles simply as as "Boalt Hall."

However, after some soul searching, University officials recently decided to change its name because of concerns that people outside the Bay Area did not know what "Boalt Hall" was. "We [were] looking for ways to more clearly identify the law school with Berkeley so that outside audiences will have a clearer sense of what we are," says the school's dean, Christopher Edley Jr.

This being California where association with the city of Berkeley actually is perceived as desirable, school administrators hired the San Francisco consulting firm, Marshall Strategy Inc., to help the law school select a new name that would be more clearly identified with Berkeley, According to its website, Marshall Strategy "helps all types of organizations develop successful identity strategies. This may involve re-positioning or revitalizing existing identities, creating new identities, or aligning brand portfolios." Or, Marshall can "align and rationalize identity portfolios for strategic effectiveness and cumulative impact," if that would help. "We are experts in creating meaningful names."

At a cost of $25,000, these re-branding artists conducted extensive interviews with alumni, students, donors and others in the community, and, after an undoubtedly lengthy process of rationalizing the school's identity portfolio to maximize strategic effectiveness and cumulative impact, UC Berkeley's school of law will now be known as (drum roll please)--

The "UC Berkeley School of Law."

In a happy coincidence, the school's new name happens to match what it has long been using on its diplomas.

Also coincidentally, Dean Edley has supported hefty fee increases at Boalt Hall, arguing that they are needed to attract top-quality faculty. Presumably the UC Berkley School of Law will require even heftier fee increases for the Marshall Strategy, Inc. advertising campaign designed to convince U.S. News & World Report that this law school they hadn't heard of before is actually a top tier school (actually, to be fair, U.S. News & World Report already uses what is now the new name in its rankings. This is more than can be said for the law school itself. Marshall Strategy's strategy to "update the brand portfolio" should probably have included updating the name on the website which as of this posting, still refers to the place as "Boalt Hall.")

Do the child labor laws apply to geniuses?

But I think this job probably pays better than the paper route I had!

In defense of judges (at least some of them).

In his conclusion of this post at his Judging Crimes blog, Joel asks the question "What better job than appellate judge for the person who feels a psychological need to win every argument but lacks the intellect to win any? He can pretend to win the argument by lying about the facts of the case and misrepresenting the arguments of counsel, and he can then enlist the entire apparatus of the judiciary to make his pretense seem real. And for such a superlatively bad judge, the simulacrum is the closest he's ever going to come to the real thing, so of course he seizes every opportunity to experience it."

Ouch!

He empirically refers to an appellate judge "from the right side of the map" that a friend of his practices in front of, which Joel describes as follows:

This particular judge, while viewed as harmless enough by most of the bar, has developed an interesting reputation among appellate practitioners: his published opinions are full of lies. When he can't refute the arguments of counsel, he misrepresents those arguments and then refutes the misrepresentations. When the facts are inconsistent with his position, he ignores them or makes up others. "When you read his opinions, you need to constantly remind yourself that there's no more than a 50/50 chance that he's describing the case honestly."

The judge is running little risk of having his lies exposed because most lawyers reading his opinions (and no one but lawyers will ever read them) know nothing about the case except what the judge himself has revealed. The only lawyers in a position to expose his lies fall into one of two camps: those who aren't going to risk their client's victory by complaining; and those whose complaints would sound like sour grapes - and would almost certainly provoke retaliation. (Bad judges hold conscientious counsel's clients hostage in that way.)

In theory, the other judges serving on the appellate panel could check this judge's lying. But why would they want to? What's in it for them? As Judge Richard Posner has pointed out, appellate judges benefit in multiple ways by raising no objections to their colleagues' opinions. Going along to get along is rewarded by increased leisure, while scruples only mean extra work.

Perhaps even more importantly, passivity maintains cordial relations among colleagues. If Judge X points out that Judge Y has misrepresented the facts, Judge Y will retaliate by dissenting from Judge X's next opinion, forcing Judge X to write crabbing footnotes in rebuttal, and so on, until someone boycotts the annual party and the feud becomes a real drag for everyone who works at the court.

You have to decide which is more important: justice for strangers, or a comfortable workplace for yourself. (Whenever an appellate judge starts talking about "collegiality" on the court, pay attention, because it's a coded confession: he or she is admitting that the judges run the court primarily for their own benefit.)

I know that judge bashing is any lawyer's favorite sport (I certainly engaged in plenty of it when I was a practitioner) and I don't doubt that there are judges on the bench that are just as incompetent, lazy or deceitful as Joel describes. However, on the (perhaps mistaken) assumption that the judge above is someone other than me (I do admit to residing on the "right side of the map"), let me gently suggest that many, dare I say even most, appellate judges don't fit Joel's implied generalization.

If only I could win every argument with my colleagues. I confess that I never thought of just misrepresenting the arguments and then just refuting the misrepresentations in the sure and certain knowledge that my colleagues would be too lazy and polite to correct me. Indeed, my own experience is that neither I nor my colleagues are the least bit reticent about actively challenging any errors of fact or law that find their way into draft opinions. While judges are human and thus fallible, if any judge in my jurisdiction developed a reputation for consistently writing opinions that were "full of lies," his or her colleagues on my court simply wouldn't stand for it. Our culture is that while a single judge may be the author of an opinion, it is the opinion of my court and we all collaborate to insure through rigorous peer review that our opinions reflect a high standard for factual accuracy and legal scholarship. Now obviously a losing party may not agree with that statement as far as their case is concerned but we meet annually as a court with representatives of various statewide and specialty bars as well as trial judges, and ask them to constructively criticize our work and they have not been shy about doing so.

Courts, including appellate courts, are in the customer service business and the quality and utility of what we produce ought to be of paramount importance. My only counterpoint to Joel's post is that while I don't take myself very seriously, I and most of my colleagues do take our job very seriously indeed so while Joel's accusations may be the true in some jurisdictions, it isn't true in all of them.

A 230 mpg flying saucer (at least that's what it looks like to me) for around 20k.

I have heard rumblings about this car for awhile now but Aptera has apparently rolled out the first working prototype of this three-wheeled diesel-electric car. Apparently the biggest part of the secret to that great mpg number is its very slippery drag coefficient of 0.11. The company is also claiming a 0-60 time of 10 seconds. Aptera estimates a price of around $20,000 with deliveries beginning in about a year.

Impressive if they can pull it off.

Hat tip to Gizmodo.

Integrating a Motorola Razr with a Mercedes the Russian way.

More pictures here.

Thanks to Tech Ticker.

Apparently God won't risk a default judgment in Nebraska.

Nebraska State Senator Ernie Chambers, angry about frivolous lawsuits, in particular one recently filed against a Nebraska judge, has decided to make a point and simultaneously take legal action against the source of all his irritation, namely God.

Chambers is upset about a frivolous lawsuit against Lancaster County District Judge Jeffre Cheuvront. Cheuvront was in the news himself not long ago for granting a motion in limine to exclude the word "rape" from a rape trial. (He decided using that word would be unduly prejudicial.) The case ended in a mistrial, and the accuser in that case has sued Cheuvront, which is what Chambers is mad about.

Chambers called his lawsuit "appropriate," at least in comparison to the accuser's lawsuit. "People might call it frivolous," he said, "but if they read it they'll see there are very serious issues I have raised."

In the complaint, Chambers accuses God of making "terroristic threats" and of directly and proximately causing "fearsome floods, egregious earthquakes, horrendous hurricanes, terrifying tornadoes," and other sundry disasters and impediments to mankind's peaceful enjoyment of God's other creations.

Chambers asks the court to waive the personal-service requirement on the grounds that Defendant and His agents are present throughout Douglas County, but Plaintiff cannot determine which agent to properly serve. He says he has tried to serve Defendant by publication to no avail. (Does any newspaper circulate in heaven? On second thought, the New York Times probably claims subscribers there.) The court was therefore asked to take judicial notice of the fact that Defendant is omnipresent and omniscient, and thus has actual notice of the suit.

Chambers seeks a permanent injunction against God.

What Senator Chambers, who is an agnostic, probably didn't expect was that God would file a responsive pleading. In fact, He seems to have filed two of them.

A special appearance was filed on behalf of God to contest jurisdiction, noting that God had not been properly served with the complaint. (In other words, omniscience does not equal personal service.) The pleading turns out to have been filed by a Corpus Christi (seems appropriate) lawyer named Eric Perkins. While the response is based on the alleged lack of jurisdiction, it also takes the opportunity to deny the allegation that God has caused extensive injury to mankind. According to Perkins, his Client "contends that any harm or injury suffered is a direct and proximate result of mankind ignoring obvious warnings." (Mr. Perkins clearly has never practiced in California if he thinks "ignoring obvious warnings" is a defense to liability.)

As it turns out, though, Perkins' response was not the only one filed on behalf of God last week. The clerk of the Douglas County Court said that another response, this one listing the Archangel Michael as a witness, "appeared" on the counter at the clerk's office Friday.

It appears that God is putting together a defense team.

Thanks to Above the Law for the tip.

An unfortunate juxstaposition of stories.

The layout editor for this edition was apparently asleep at the switch.

Cruel and (certainly) unusual punishment.

The interrogators at Guantanamo have nothing on a judge in Fort Lupton, Colorado (northeast of Denver) who has fashioned a creative sentence for those who violate the town's noise ordinance.

As these are mostly young people who cruise around the streets of Fort Lupton with "rap" music blaring out their car windows, Judge Paul Sacco has devised a punishment that he says fits the crime:

Manilow.

About four times a year, Judge Sacco has the ordinance violators gather in his courtroom, where they must remain for a full hour while a boombox blares the likes of Barry Manilow, Dolly Parton, Karen Carpenter and Barney (the purple dinosaur). During the full hour of punishment, they are not allowed to chew gum, eat, drink, read or sleep.

Most violators found the first few minutes funny. As time wore on, they weren't laughing anymore.

"When you have a person playing rap at extreme volume all over the city," said the judge, "and they have to sit down and listen for an hour to Barry Manilow, it's horrible punishment."

Adding to the cruel-and-unusual-ness of the punishment, offenders must pay attention during the full hour, and may not sleep, eat, drink, read, or chew gum. Many find the first few minutes comical, but the laughter stops as the torture continues.

Judge Sacco has been imposing the punishment for over ten years, and says there have been very few repeat offenders.

A clear violation of the Eighth Amendment.

From CBS4Denver.

"Never has so much been owed by so many to so few." - Winston Churchill

I blog about many things in this space and one of them is the occasional historical event. This is one of those posts.

Yesterday was the 67th anniversary of the British victory in the Battle of Britain which lasted from August 11 through September 15, 1940.

An essential prerequisite to executing Operation Sea Lion, Hitler's plan to invade England, was achieving complete air superiority to protect the invasion fleet and to bomb rail junctions and marshaling areas to hinder the movement of British troops toward the landing zones.

Reichsmarschall Goering guaranteed to Hitler that the Luftwaffe would "wipe the British from the skies" in a matter of weeks. Instead, over a 26 day period, a relatively small group of hurriedly trained pilots flying Hurricane and Spitfire fighters, flew sortie after sortie against wave after wave of German bombers and their covering fighters.

Although a few railway junctions, bridges and buildings of non-military value such as three hospitals and Buckingham Palace, were hit, Fighter Command shot down 1,294 German aircraft losing 788 planes in the process.

Realizing that they were losing planes faster than they could be built and that air superiority over Britain was out of the question, Operation Sea Lion was canceled and Hitler turned his attention to an invasion of Russia.

Just as the Battle of Midway proved to be the turning point for World War II in the Pacific, the Battle of Britain marked the end of German expansion in Western Europe (the Battle of Stalingrad accomplished the same goal with respect to Eastern Europe).

CYA appellate advocacy is not necessarily effective appellate advocacy.

The Wall Street Journal's Law Blog reports here that lawyers at O'Melveny & Myers, the firm defending former Enron CEO Jeffrey Skilling on appeal from his criminal conviction, have filed an appellate brief with the Fifth Circuit that is 239 pages long.

I will concede that the Fifth Circuit requires a 14-point font for briefs but nevertheless, at 58,922 words, this brief is over four times the length allowed by the rule, which limit briefs to 14,000 words unless you get permission from the court. The normal limit would permit a brief of about 50 pages (again, depending on the font), but I just can't imagine a case where the issues would justify even 50 pages much less 239.

A brief that long is simply not very effective as a persuasive tool although a brief of such length will be more effective in serving to cover the firm's hindquarters and/or in justifying a truly obscene bill for appellate services.

This brief covers five "main" points and to do so, it contains: a 12-page introduction; over 44 pages of facts; a two-page summary of argument; a 175-page argument that doesn't begin until page 61; and finally, a two-sentence conclusion, for anyone who has not succumbed from natural causes by the time they get there.

The accompanying Motion For Permission to File a Brief Exceeding the Word Limit Set Forth in Federal Rule of Appellate Procedure 32(a)(7)(B), is itself eleven pages long. In that motion, O'Melveny says that the case of their client is sufficiently "extraordinary and compelling" that the extra words are justified. The brief "will raise a large number" [five as it turns out] of "serious legal issues" (I guess they think that most briefs don't raise these), each of which "could easily justify a full-length brief on [its] own." Finally, the authors note that this is not the longest brief (an apparently clueless use of an oxymoron if there ever was one) ever written, pointing out that in U.S. v. Brown, the government used 69,370 words in its brief, and in U.S. v. Martha Stewart it used 56,078 words (as if the lengths of those briefs somehow made them more persuasive). Therefore the only reasonable conclusion the court is expected to draw is that 58,922 words is really quite reasonable.

I think I will wait for the movie.

"Eek the Geek" studies to become a lawyer for freaks.

Eduardo Arrocha, who began classes this semester at Thomas M. Cooley Law School in Lansing, Michigan, has found a new calling. Arrocha, decided on a new career in law after spending the last 15 years eating nails and walking on glass in his role as "Eek the Geek" in a Coney Island sideshow.

When he is not digesting 10 penny nails and strolling through broken glass, he is a poet and artist who has toured with a hard-core punk band.

His solo act at Coney Island "displays his many tattoos, includes a lecture on diversity and stands three audience members on his chest as he lies sandwiched between two beds of nails." With that combination of skills and talent, he has "trial lawyer" tattooed written all over him.

Arrocha says that he hopes to use his law degree to speak for "alternative people" like himself. "I hope to have a little office in New York," he said, "and work with the alternative people, all the so-called riffraff, to give them legal representation that is not judgmental." He continued, "I know it sounds weird, but I want to be a freak lawyer."

I like this guy and I really do wish him well. Of course after eating nails and walking on broken glass for a living, the New York Bar Exam should be a piece of cake.

From the Associated Press via Newsvine.

Latin dead? Hold the postmortem!

In a Sixth Circuit opinion released today in which he chastises the State of Michigan for confusing the doctrines of res judicata and collateral estoppel, Judge Boyce Martin decided to apply the doctrine Michigan probably meant to argue (collateral estoppel) noting in a footnote that "Latin is a dead language anyway."

His colleague, Judge Alice Batchelder, filed a one paragraph concurring opinion which in its entirety reads as follows:

I concur in Judge Martin’s opinion. I write separately only to express my suspicion that, like the reports of Mark Twain’s death, see The New Dictionary of Cultural Literacy (Third Edition, 2002), the report of the death of Latin in the majority opinion’s footnote 5 is greatly exaggerated.

So I guess Latin as a language is every bit as alive as Mark Twain is?

On the other hand, Rident stolidi verba Latina. (Fools laugh at the Latin language.) ----Ovid

Hat Tip to The Volokh Conspiracy.

Now this is something you don't see every day.

Law.com reports that San Francisco United States District Court Judge Martin Jenkins wants to give up his lifetime tenure on the federal trial bench to become a judge on the California Court of Appeal and thereby subject himself to periodic retention elections.

The article notes that "[t]hose close to him have indicated his practice of working long hours and meticulous attention to detail in a large federal caseload has taken a toll."

Well I hate to puncture anyone's balloon but the job of a state appellate judge everywhere I am familiar with (including California) also involves a large caseload and meticulous attention to detail (at least if you are going to do the job right).

By all accounts, Judge Jenkins is an outstanding jurist and if he is appointed, I have no doubt that he would be a tremendous asset to the California court system. Besides, it is always a pleasant surprise when one of the elite decide to join the ranks of what certain people refer to as "icky state judges."

Hat Tip to David Lat at ATL.

An interesting historical footnote.

As I have said before, I don't blog about politics but I do sometimes blog about history and with that disclaimer and against the background of the resignation of Attorney General Alberto Gonzales, I offer this link to an article by Professor John Barrett of St. Johns University Law School who reminds us that there have been times when the office of Attorney General was actually held in high esteem by its occupants.

Justice Robert H. Jackson is one of my personal legal heroes. He epitomized professionalism in his practice and in every office he ever held. It is therefore not at all surprising that, following his nomination by FDR to a seat on the Supreme Court, he immediately took steps to avoid any appearance of impropriety by turning over day-to-day operations of the Justice Department to the Solicitor General, Francis Biddle. What is surprising, as Professor Barrett notes, is that after taking the oath of office as an Associate Justice, he realized that he had forgotten to resign as Attorney General and therefore briefly held both offices simultaneously.

Binoculars in stuffed toys for the weirdo on your Christmas list.

Now this just creeps me out.

Those amateur capitalists in China have apparently decided that there are sufficient Peeping Toms in the world to provide a market for the head of a stuffed animal wrapped around a pair of binoculars.

If whatever the Chinese made them out of doesn't make you sick or kill your dog, you can spy on the old lady next door and she will just think you are now the proud owner of a fluffy pink zombie pig.

Norway - Where only volunteers go to prison.

There is no prison overcrowding problem in Norway because it seems that in that country, "doing time" is optional. About 20% of convicted criminals simply fail to show up to serve their sentence.

According to Aftenposten:

The dilemma facing the prison authorities is that failure to show up at prison is not yet illegal. Although Parliament has passed new legislation making it a criminal offence to skip prison, the law has not yet been implemented and until it is, prison authorities can do nothing but hope that the criminals will eventually show up at the prison gates.

What really amazes me is that apparently 80% of the convicted criminals voluntarily show up to serve their sentences!

The pressure! Oh, the pressure!

I guess I am honored to be ranked as one of the "blogs that judges read" by the newsletter of the National Judicial College, but in view of the very valid concerns about judges blogging expressed in the article, I think a brief explanation is in order.

I know judges, especially appellate judges, are expected to be hothouse flowers who do nothing but read briefs, cases, statutes, treatises and law review articles while contemplating the intricacies of the Constitution. In reality we are real people with a host of other interests.

As the description at the top of this page announces, this blog represents a vehicle for passing along items I find interesting and for expressing some observations or even an occasional rant about something that bothers me. Having said that, I recognize that the Canons of Judicial Conduct require that I must be very careful about the subjects that I blog about and what I say in my posts. Anyone who troubles to scroll through the archives of this blog will discover that in addition to the law, I am interested in many other things and I have tried and I hope succeeded in 1) entertaining my readers with amusing items on a variety of subjects that I find all over the place; 2) sharing my interests in all things geeky, especially in the area of "green" tech; and 3) in some small way, occasionally making a positive contribution to the dialog about professionalism in the practice of law, particularly in the appellate arena.

I started this blog as an outlet for me and I was frankly surprised at the reaction when I suspended it last year. Although my posting frequency has slowed lately as the workload of my day job has picked up, I plan to continue on in the same vein and I welcome any comments, questions and constructive criticism.

No Parking and it looks like they really mean it!

Now this is what I call a "No Parking" sign.

Colorcoding the Supremes.

In the current issue of the ABA Journal Magazine, Philadelphia lawyer Andy Gowa suggests that the justices on the Supreme Court of the United States make better use of their robes by coordinating their color with the subject matter of the issues before the court. He suggests for example "burnt umber to project warmth in child rights and family law matters and dark charcoals and blacks to project sobriety and seriousness in death penalty cases."

As I noted here, our colleagues in England and Wales are moving in the opposite direction. Nevertheless, I would welcome other suggestions from readers of this blog - perhaps IBM blue or ExxonMobil red in antitrust cases, lime or chartreuse in environmental cases or pink, purple or heliotrope for those civil union or same sex marriage cases.

Of course, if this catches on, John Roberts and the Supremes will go through as many wardrobe changes in the course of a day as Diana Ross and her Supremes did.

NYT: Real life is really Sim Life (TM).

According to Oxford philosopher Nick Bostrom, the chances are pretty good that we're currently existing not in the "real world," but instead are a vast computer simulation created by a future, further advanced version of ourselves. Basically, Bostrom argues that because computing power will advance to the point where a system could be built that could simulate every brain on earth, future "posthumans" could set up an "ancestor simulator" that would be indistinguishable from real life for the inhabitants.

While Bostrom thinks there's a 20% chance of our entire world being a computer simulation, John Tierney of the New York Times thinks the odds are closer to even.

Cheer up though, even if it's true and this is really all happening in the PC of some future Bill Gates, it's not so bad, as long as the computer isn't running Windows. That Blue Screen of Death would be a really lame way to go.

Motion to continue in order to please wife is granted.

Apparently, the bankruptcy judges in the Sixth Circuit are very understanding when it comes to a conflict between representing a client and marital bliss. However, I suspect that if the wife in question ever reads this motion and discovers that her spouse would prefer oral argument in bankruptcy court over a bike trip with her, he will wind up listening to about 350 miles worth of oral argument from her.

Thanks to Above the Law

Casanova tells all (about appellate persuasion).

One of the most understated blawgs around is this gem from the Old Dominion. Although his primary focus is Virginia and the Fourth Circuit, Steve has posted a number of "essays" on his site, many of which should be of interest to appellate practitioners anywhere. Some of my favorites take the form of "interviews" about the finer points of successful appellate advocacy with the likes of Sun Tzu on the Art of (Appellate) War, Ernest Hemingway on legal writing and Cicero on oral argument.

Steve has another of what the media types call a "great get" with his interview of Casanova on appellate persuasion. His celebrity guest makes some valid observations in an interesting way but let me reinforce the point that facts and law will always work a lot better than flattery and whispering sweet nothings (at least with me). But then again, George Clooney has never argued a case in front of me.

This gives a whole new meaning to "Heavy Metal" music.

No, she is not wearing an aluminum tutu. She is playing a musical instrument called hipDisk. The self-proclaimed "most undignified musical instrument ever" goes about its noise making ways by utilizing soft switches on the two discs, which "create a variety of chimes based on one's movements." The design is supposed to "accentuate the interdependent relationship of the hip and torso" and to enable "a small orchestra of hipDisked women to play chord structures together."

I don't get the bathing suit and cap but I think she is cranking out "The Ride of the Valkyries instead of Swan Lake."

Trial judge will only do his job if the parties agree not to let appellate judges do theirs.

In his latest column on Law.com, Howard Bashman discusses a case he is involved with where the trial judge only agreed to decide the merits of the case if the parties would agree not to appeal his ruling.

I hope this doesn't catch on or I will find myself working as a greeter at Wal-Mart.

Via How Appealing.

I'm no marketing genius but ... (Part III)

... is there really a market for stuff like:


The Chia Pet-like "lawn" chair you have to mow.

Via Geekologie.








How about cereal straws? Little tubes of Froot Loops (TM) cereal that are lined with powdered milk? Yuck!

Via The Impulsive Buy.


Or you could be the first on your block to own a "Magic Wheel" which comes from our British cousins and appears to consist of one big wheel and one small wheel. It operates through the rider planting one foot on the Wheel's platform while pushing with their opposite leg (see the embedded video for a demonstration). The idea is best described as unicycle meets skateboard, or in my case, aging body meets ground meets emergency room.





"Handsoap" shaped like babies hands just seems wrong to me on several levels.

Via 7 Gadgets.

British judges dressing down.

Lower court judges in England and Wales are apparently poised to join their Scottish colleagues and give up their expensive wigs and robes - at least in civil cases.

The judicial robe and barrister's gown dates from the reign of Edward III (1327-77) and by the 17th century, the fur and silk-lined robes were well established as a mark of high judicial office. Judicial costume changed with the seasons, generally green in the summer and violet in the winter, with red reserved for special occasions (See below). The plain black gown was adopted by most barristers in 1685 when the bar went into mourning at the death of King Charles II. They have apparently never gotten over it.

Use of a wig as part of judicial attire dates from about 1660, the time of the restoration of the English monarchy after the civil war. Upon the return of Charles II from France, the fashion of the Court of Louis XIV for powdered wigs became de rigeur for those who wanted to show their rejection of the old regime of Oliver Cromwell and his short-haired "Roundheads".

Thomas Jefferson, said that English judges looked to him "like mice peeping out of oakum" and urged American judges to abandon the traditional wigs and robes while fellow lawyer and founding father, John Adams, urged them to maintain the traditional dress. Most American judges compromised by dropping the uncomfortable wigs and adopting the less ostentatious, plain black "barrister's robe."

Apparently all the different wigs and robes English judges wear in various types of cases and seasons cost around $20,000 so the decision is largely an economic one although the regalia will still be worn in criminal cases and by High Court judges. Presumably, those still wearing traditional judicial garb will continue to follow the "Court Dress Consultation Paper issued on behalf of the Lord Chancellor and the Lord Chief Justice" (August 1992):

When sitting in the Court of Appeal (Criminal Division), High Court judges, like other members of the Court of Appeal, wear a black silk gown and a short wig, as they do in Divisional Court. When dealing with criminal business at first instance in the winter, a High Court judge wears the scarlet robe of the ceremonial dress but without the scarlet cloth and fur mantle. When dealing with criminal business in the summer, the judge wears a similar scarlet robe, but with silk rather than fur facings. A Queen's Bench judge trying civil cases in winter wears a black robe faced with fur, a black scarf and girdle and a scarlet tippet; in summer, a violet robe faced with silk, with the black scarf and girdle and scarlet tippet. On red letter days (which include the Sovereign's birthday and certain saint's days) all judges wear the scarlet robe for the appropriate season.

Did you get all that? There will be a quiz later. Oh, before you ask, I have absolutely no idea what a "tippet" is but it sounds to me like American judges made the right decision.

Hat tip to How Appealing.