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.)