Congressional Motors Presents the 2012 Pelosi.

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

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

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

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

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

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

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

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

Hat tip to Autoblog.

Should only law professors be appellate judges?

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

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

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

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

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

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

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

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


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

British judges more willing to talk to the press.

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

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

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

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

From TMZ.

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

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

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

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

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

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

Via the BBC.

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

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

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

Hat tip to Glenn Reynolds.

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

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

Thanks to Whole Wheat Toast.

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

Apparently, elections can kill you.

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

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

From LiveScience.

The Pink Panzer?

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

Now they apparently involve pneumatic cannon and bizarre urban camouflage.

Via PopSci.

Maybe I should go on a junket factfinding tour.

The New York Times had this interesting piece the other day about how judges are more involved in making foreign policy.

Remembering 9/11

Everyone remembers where they were on that fateful day, seven years ago. I was in court hearing oral arguments when we noticed both attorneys and our bailiffs suddenly begin to leave the courtroom. Finally one of the bailiff's slipped me a note (I was presiding judge at the time) to the effect that airliners had been deliberately flown into the World Trade Center in New York and the Pentagon in Northern Virginia.

We finished the case in front of us and took a recess where we began to learn the grisly details. Along with another day, November 22, 1963 when John F. Kennedy was assassinated, the details of September 11, 2001 will remain with me forever.

Amidst the tragedy, there were heartening things as well that I remember about that day and its immediate aftermath: The bravery of the passengers on United Flight 93. The way the so many police and firefighters sacrificed themselves to try to save others. The way we were united in our grief for the lives so senselessly lost. Our anger that someone would attack ordinary citizens - men, women and children -on our own soil - and in our fear that such a thing could happen again.

Seven years later, we are far removed from that unity. We should be able to disagree without being disagreeable but judging from the rancorous rhetoric currently rampant in the blogosphere and in the mainstream media, we seem to be more divided now than ever before. The things that separate us - race, age, gender, party affiliation, among them - are highlighted much more than those things that bring us together.

If only we could recapture the time when we were all just plain Americans. If there was a lesson in the atrocities of that day, it was that such a thing is still possible.

We rose above our differences once, maybe we can make that the norm rather than the exception.

Tagged!

Even though he is on vacation, Ken has managed to tag me.

As he says, the rules are simple: name 5 blogs I read and tag 5 blawgers. Note the difference between blogs and blawgs (law releated blogs).

The blogs I read the most in no particular order are:

The Scott Adams Blog - by the creator of Dilbert

Autoblog - for the car enthusiast

Autoblog Green - OK, so I'm also a bit of a treehugger.

Politico - Political Blog aggregator

Instapundit - Politics, book reviews, science and all kinds of other stuff.

The blawgers I am tagging are Steve, the other Steve, Bill, Michael and the always delightful Ann.

If you cross the Da Vinci Code with any John Grisham novel, this would be the result.

From last week's Daily Telegraph comes a story that struck me as what the result of a literary collaboration between John Grisham and Dan Brown might look like.

It seems that the Knights Templar, or at least a group that claims to be the legitimate heirs of the Knights Templar, has sued Pope Benedict XVI. The lawsuit, filed by the Association of the Sovereign Order of the Temple of Christ, alleges that the Catholic hierarchy wrongly persecuted the group and illegally seized its assets.

This all occurred back in 1307.

There certainly was a group called the Knights Templar, which was founded in 1119 after the success of the First Crusade. The Knights were devoted to protecting pilgrims on their way to Jerusalem, but they also developed a lucrative side business in real estate speculation that enabled them to amass lots of property (some 9000 estates at their peak) and enormous amounts of wealth. These assets came in handy after Muslims reconquered Jerusalem, thus putting the Knights out of the pilgrim protecting business.

Unfortunately for the Knights, in the 14th century sitting on lots of real estate and giant piles of cash had a tendency to get you accused of little indiscretions such as devil worship or heresy, which in turn tended to lead to being burned at the stake. In 1307, Pope Clement V, under pressure from King Phillip IV of France, dissolved the order, executed its Grand Master and many of its members and confiscated all the assets for the King and Church.

The lawsuit, filed 701 years later, alleges that the seizure of assets was not justified and that the Church owes ASOTC somewhere around 100 billion euros ($150 billion U.S.). Aside from the obvious statute of limitations problem (presumably the Knights will argue that statute of limitations was tolled by the Vatican's suppression of the records of the "secret" Templar trials), a few other problems occurred to me as well:

First, there is a little problem with venue. The lawsuit was filed in Spain while the Templars were headquartered in Paris at the time they were dissolved and France is where the leaders of the order were executed. Moreover, Pope Clement, who was French, was so in the tank for King Phillip that he moved the papacy from Rome to Avignon in southern France where it remained for the next 68 years;

Second, since Pope Benedict wasn't around 701 years ago, he is presumably being sued in his official capacity as the head of the Catholic Church. The problem is that in that capacity, he is also a head of state (Vatican City) and is entitled to sovereign immunity for civil actions directed against his official role;

Third, it seems to me that, torture and executions aside, if the order of Knights Templar was authorized by one pope (Honorius II), it could be dissolved by another and so by definition there is no legitimate group by that name which would have standing to claim damages;

Finally, I wonder why they haven't they named the President of France in the lawsuit. It seems to me that the same logic which they are using to try to collect a hundred billion euros from the current pope would also justify a recovery from the modern successor to King Phillip who appropriated the lions share of the Templars' property for himself. Heck, every lawyer knows that when you are going after that kind of money, two deep pockets are better than one.

Divorce Economics - New Jersey Style.

From the State of New Jersey, here is a higher profile example of a mindset that judges see every day. It is where the parties to a broken marriage would rather give the money to the lawyers than allow their former spouse to have it

Today's lesson in "divorce economics" comes to us by way of Superior Court Judge Karen Cassidy's ruling in the case of the McGreevey's, the former N.J. governor, who is gay, and his spouse, Dina, who is not.

The bottom line of the balance sheet looks like this:

Dina spent $500,000 to get an award of $100,000 while Jim also spent $500,000 to save $200,000. (He had reportedly offered a settlement of $300,000.)"

Buried in the opinion is the tidbit that Dina testified that in order to look the part of the state's First Lady, she spent about $40,000 a year on clothing and accessories for herself and her daughter. Turns out Jim actually asked the court to count all those St. Johns suits as a marital asset and to compensate him for their value.

Wouldn't it have been faster to e-mail the writers for Leno, Letterman, the Daily Show and the Colbert Report directly?"

No mistrial for a fake heart attack. Instead, how about 42 years.

Whenever somebody decides to represent himself, every lawyer and judge in the vicinity shakes their head because they know the likely result will not be pretty. In the case of Keison Wilkins, it actually paid off in an acquittal for him on a charge of felonious assault back in 2005. Unfortunately for Mr. Wilkins, the law of averages finally caught up with him and despite courtroom antics ranging from claiming that he was being lynched to faking a heart attack as shown in the video clip, he was convicted of another felonious assault and sentenced to 42 years.

I guess the moral of the story is that if you are going to represent yourself and don't have a law degree, you might at least consider acting lessons and perhaps a rehearsal or two.

On an unrelated note, I know the postings have been few and far between lately and I think I owe some kind of explanation to that hardy band of regulars from all over the world who come here on a frequent basis. The fact of the matter is that I have lately been focused more on other extracurricular interests and haven't devoted the time I previously did to blogging. So, although I won't repeat my previous mistake of putting this blog on hiatus only to to resume it later, for now at least, my posts will continue to be more infrequent than long time readers are used to.

Happy Birthday America!

There are now 232 candles on the cake.

The Chinese idea of a S.W.A.T. Team,

I'm hardly an expert on anti-terrorism but I do know that "S.W.A.T." stands for " Special Weapons and Tactics" and it seems to me that a Segway is not exactly a "special weapon" and shooting from one in a crouched position is lousy tactics for three reasons: 1) it can't possibly help accuracy; 2) it leaves the shooter more exposed; and 3) instead of focusing on your target, you are preoccupied with the thought that you look like a complete idiot.

Maybe the missing weapons of mass destruction were in Saddam Hussein's ipod.

Apple's crack legal department has taken steps to insure that the licensing agreement for that company's popular iTunes software contains language that prohibits the use of iTunes in "the development, design, manufacture, or production of nuclear missiles or chemical or biological weapons."

Don't laugh, I'm pretty sure that the heavy metal music my teenage son downloads from iTunes qualifies as a biological weapon.

A separate licensing agreement contains a disclaimer that puts any iTunes user on notice that the software "is not intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, life support machines, or other equipment in which the failure of the Apple software could lead to death, personal injury, or severe physical or environmental damage."

Wow! I knew iTunes was powerful, groundbreaking software but I had no idea that it was that powerful!

If Steve Jobs wants to rule the world, it looks like he has the software to do it with.

Via Instapundit.

The only federal courthouse that serves two different federal districts and circuits.

As a follow up to the post below, you may not have fully appreciated the elegance of the decision by Judge Nowlin to order that the discovery deposition in that case take place on the steps of the federal courthouse in Texarkana.

That particular courthouse has the unique distinction of straddling the Texas-Arkansas border with one of the building's courtrooms located in the Eastern District of Texas and the Fifth Circuit while two others are located in the Western District of Arkansas and the Eighth Circuit.

Eugene Volokh has blogged about the potential constitutional problem if a case happens to be tried in a courtroom on the wrong side of the building.

If more lawyers are going to act like those chronicled in the preceding post, maybe more courthouses should be built like this.

An example of why leaving it up to a judge should always be a last resort.

Steve Emmert of Virginia Appellate News & Analysis blog fame was kind enough to provide me with this order (you can also click on these links for larger images of page 1 or page 2) from the case of Waggoner v. Wal Mart Stores, Inc. which aptly demonstrates the consequences of being so stubborn about mundane matters that the court is required step in, decide where your deposition will be held and humiliate both parties in the process.

Personally, I think that under these circumstances, Texarkana is an inspired choice

This is why you should clean your closet out occassionally.

Apparently, Japanese closets are so big that you can live in one undetected for more than a year.

It seems the homeowner noticed some food missing and installed surveillance cameras that he could monitor from his cell phone and discovered that a homeless woman was a long time resident of his closet.

It seems to me it would have been easier and less expensive to just look in all the closets.

Memorial Day

We remember.

In Minnesota, you waive your right to counsel when you beat up the one you have.

"Do you forfeit your right to counsel when you beat up the lawyer you have?" The Minnesota Court of Appeals has answered that burning question in the affirmative.

William Lehman was on trial for multiple felony assault counts, and a public defender was appointed to represent him. After the prosecution rested, Lehman himself rose to ask for a mistrial (denied) and that a different attorney be appointed to represent him (also denied). Lehman's method of asking the court to reconsider its rulings was by "wrapping his arm around [counsel's] neck and punching him repeatedly in the face."

As you might expect, the court recessed (apparently in part to clean up quite a bit of defense counsel's blood). When court reconvened, the jury was instructed to disregard the facts that defense counsel was no longer present, Lehman was now dressed in "jail clothes," and that his arms and legs were shackled.

Maybe it will avert a future beating or two if I mention here that this strategy doesn't work whether it's your lawyer or a juror that you sucker punch. Unsurprisingly, the jury convicted Lehman of all those assault counts.

British judges boldly go 700 years into the (near) future.

British judges have apparently made official what I blogged about here last July and have abandoned England and Wales' 700-year-old tradition of wearing horsehair wigs and other traditional judicial regalia in favor of new standardized robes with changeable collar tabs. The result has been a chorus of mockery from fashion critics and traditionalists, who say the new robes have turned judges into fugitives from a Star Trek episode.

The Lord Chief Justice, Lord Phillips, seen here modeling the new robe, felt the old-style wig and gown look was out of touch with the 21st century and thought it was time to go bare-headed.

Apparently the colored (or coloured) tabs will substitute for the different colored robes that change with both the seasons and the nature of the case and thereby save a lot of money.

So from October, judges hearing civil and family cases in England and Wales will don a new robe designed by Betty Jackson, who also makes "funky British clothes for aspiring funky British girls.''

The Guardian offers this review:

It's not the slicks of colour down the front that are the most problematic - although this colour coding system does have a rather oddly naval smack to it - nor even the truncated collar, which cannot but make the wearer look like an evil pastor.... The slicks of colour down the front and around the cuffs, [make] each judge look like a cutprice Cruella de Vil....

Look at this poor man: instead of appearing imperious, the lord chief justice, Lord Phillips, now just looks like the man who sells you tickets for the Star Trek Experience at Caesars Palace in Las Vegas.

Ouch!

Over at the Times, Cambridge professor, Sir John Baker writes that he doesn't mind seeing the wigs go but when it comes to abandoning the traditional robes, he offers his two pence thusly:

Their symbolism is greatly enhanced by the knowledge that they are not the invention of imaginative couturiers but a proud inheritance. These are the robes of Coke, of Hale, of Holt, of Mansfield. They have been worn through all the vicissitudes of our history, through the Wars of the Roses, the Civil War, and the Blitz, by the guardians of our system of justice. They are well known everywhere and are still worn in many Commonwealth countries and even in some former Commonwealth countries. The reason for that is obvious to all. No other costume is more closely associated with freedom, judicial independence and fairness.

The remarkable costume modeled by the Lord Chief Justice owes nothing to our traditions of formal dress in this country, and seems to have been inspired by science-fiction cinema. At a time when the law of England faces perhaps the biggest threats in its history, it is severely unsettling to the public to find our judges wanting to look like warlords from outer space.

Double Ouch! (I'm with you Sir John.)

Beam me up Scotty.

Airlines really do treat their customers like [excrement]!

Forget first class, business class and even economy class. Gokhan Mutlu says he found himself relegated to flying "toilet class" on JetBlue recently. Presumably he had to give up his seat every time another passenger felt the call of nature. Mutlu is now suing JetBlue for $2 million over his seat assignment.

I don't know if this really happened or not but the last time I flew a few weeks back, the airline overbooked the fight, was an hour and a half late in leaving due to an unexplained problem and missed my connection as we sat on the parking ramp because we couldn't disembark because no gate was available for 30 minutes. I fly a fair bit and this now seems to be the norm.

The skies are now far from friendly.

Now this is just plain silly!

Apparently Oregon wants people to pay for the privilege of finding out what the law is in that state. It seems that the Beaver State claims copyright protection for the Oregon Revised Statutes (although they are apparently going to give those intellectual property pirates at ThompsonWest a pass).

Let me see if I have this straight. Oregon is taking the legal position that its public laws are not in the public domain?

I can't wait to see how this one plays out. If this catches on, I could try copyrighting my opinions. Of course, they are free now and I'm pretty sure that nobody reads them.

Via Boing Boing.

"Peebling" judges.

Apparently, some Scots are so dissatisfied with the judicial selection process in that corner of the British Isles that they want to bring back the ancient process of "peebling" (throwing stones at) the judges to make them less complacent.

I hope that doesn't catch on here. Sticks and stones WILL break my bones.

From the New Statesman.

Deadingcake?

I'm going out on a limb here and guess that the odds of this marriage working out aren't very good.

What ’s in a name? That which we call a rose gang by any other name ..... (Romeo and Juliet, Act II, Scene 2)

As you read this post you should really have Leonard Berstein's music from the soundtrack of "West Side Story," the 1961 musical movie version of the Romeo and Juliet saga, running through your head.

The Denver Post reported the other day that the parents of a 4 year-old boy fought to the point of one threatening to kill the other. Sadly, that isn't terribly unusual. The wrinkle here is that the fight was over which gang the child would join.

Instead of Capulet v. Montague think Jets v. Sharks (hence the theme music) because these former lovers are feuding about whether the progeny of their star-crossed union will grow up to become a Crip like Mom or a Westside Baller like Dad.

Unlike the musical, this story ends (for now) with Romeo/Tony pleading guilty to disorderly conduct and Juliet/Maria presumably teaching her "YG" (Young Gangster) son a little "312" (Crip Love).

15 houses that will cause you to stop and stare.

Here is a slideshow of 15 pretty amazing houses that defy physics and probably local zoning laws if they were built anywhere else.

My personal favorite is this "upside down" house from Poland that was apparently built as a commentary on the old Communist system.

From PointClickHome.

This law school is to moot court and trial advocacy competitions what UCLA under John Wooden used to be to college basketball.

I have judged a lot of moot court competitions over the years at a number of different law schools and I have noticed that a small, little known law school from Texas always seems to have a team at every tournament I judge and those teams always seem to do very well.

Now it seems that congratulations are in order as South Texas College of Law becomes the first law school in America to notch 100 wins in advocacy competitions.

South Texas' Advocacy Director and Associate Dean, T. Gerald Treece has emerged as the John Wooden of American trial and appellate coaches. Year after year, South Texas just seems to roll over other schools in national competitions. In addition to having Dean Treece, I also understand that a big part of the secret to their success is the commitment of the faculty and a great many alumni who volunteer many hours to coach and judge a great many practice rounds for each of the teams they send to moot court and trial advocacy competitions.

Pretty impressive!

First they steal your identity and then they steal your house.

Network World reports here that the FBI is concerned that identity theft may just be the first step in stealing people's houses right out from under them.

From the FBI website:

... The con artists start by picking out a house to steal - say, YOURS.

... Next, they assume your identity - getting a hold of your name and personal information (easy enough to do off the Internet) and using that to create fake IDs, social security cards, etc.

... Then, they go to an office supply store and purchase forms that transfer property.

... After forging your signature and using the fake IDs, they file these deeds with the proper authorities, and lo and behold, your house is now THEIRS.

A scary possibility no doubt and one which apparently has occurred at least once but the sad reality is that once someone successfully assumes your identity, stealing your house is only one of the many examples of fraudulent commerce that can, and eventually will, be carried out in your name. Ironically, since Congress and state legislatures have yet to get serious about the cavalier way the corporate world treats our personal information, entrepreneurs have sprung up who are filling the void with what amounts to identity theft insurance. I hope they have a real estate division.

Greener and cheaper death from the skies.

Thanks to those tree-huggers in the United States Air Force, civilization-ending nuclear winter can now be delivered by a more environmentally friendly strategic supersonic bomber.

This week, the Air Force successfully completed a supersonic flight of a B-1 Lancer bomber using a fuel that is less dependent on foreign oil, less expensive and "greener" to boot.

Using a 50% petroleum and 50% synthetic fuel derived from natural gas, Armageddon can now be delivered at a cost savings of between $30 and $50 per barrel over its 100% petroleum counterpart.

From Military.com

What NOT to do in that job interview.

In one capacity or another, I have been hiring young lawyers for the last 25 years and I know from personal experience that law schools graduate a lot of folks who, notwithstanding a first-class legal education, lack the social skills and common sense to handle a job interview in anything but a disastrous fashion.

Thanks to Reuters, here are some excellent ways to insure that you not only don't land the job of your dreams, but instead provide conversational fodder for the water cooler crowd:

• Answer your ringing cell phone during the interview and then ask the interviewer to leave their own office because "this is a private call."

• Tell the interviewer you won't be able to stay with the job long because you think you might get an inheritance if your uncle dies -- and your uncle isn't "looking too good."

• Ask the interviewer for a ride home after the interview.

• Sniff your armpits on the way into the interview room.

• Tell the interviewer that you cannot provide a writing sample because all of your writing has been for the CIA and that "it is classified."

• When offered food before the interview, decline saying "I don't want to line my stomach with grease before going drinking."

• Brush your hair during the interview.

Now go get that dream job.

"Elvis" late for court and drunk to boot.

A word of advice. When you are facing charges of stalking and violation of a protective order, it doesn't help your case to show up for court late, drunk and dressed like Elvis down to the rhinestone studded shirt, sunglasses and scarf.

Impersonating a guy who has been dead for 30 years is not a defense to contempt.

It's news when a law school actually teaches law students how to practice law.

I am not alone in my criticism of the current model of legal education which the ABA has pushed on American law schools. Fortunately, according to the Associated Press, some law schools are getting back to the basics of training men and women to actually represent clients.

The latest law school to depart from the ivory-tower only approach to educating lawyers and toward including the actual use and honing of practical skills, which are the bread and butter of every lawyer who isn't a law professor, is the venerable Washington & Lee University School of Law which is instituting a "New Third Year" Program.

According to the W&L program website:

The new third year curriculum will be entirely experiential, comprised of law practice simulations, real-client experiences, the development of professionalism, and development of law practice skills....

Students will not study law from books or sit in classrooms engaging in dialogue with a professor at a podium. The demanding intellectual content of the third year will instead be presented in realistic settings that simulate actual client experiences, requiring students to exercise professional judgment, work in teams, solve problems, counsel clients, negotiate solutions, serve as advocates and counselors—the full complement of professional activity that engages practicing lawyers as they apply legal theory and legal doctrines to the real-world issues of serving clients ethically and honorably within the highest traditions of the profession.

Now that's what I'm talkin' about!

My new best friend. The Beerbot.

A pony keg carrying, beer dispensing robot? I gotta get one of these.

Via Gizmodo.

US News Law School Ranking Methodology Revealed!

Dan Solove has the inside scoop on the methodology U.S. News & World Report uses for its annual law school ranking issue.

The worst suspicions of law school deans everywhere are confirmed.

Who cares who wins? None of them can be President anyway.

Jack Balkin has a pretty good post up at his Balkinization blog over the tempest-in-a-teapot fuss over whether John McCain is eligible to be president under Article II,Section 1 of the Constitution.

The clause in question puts the presidency of this country off limits to anyone not "a natural born Citizen." The fuss is over whether McCain, who was born in the Panama Canal Zone when his father was stationed there in the Navy, meets that definition.

Since our presidential elections lately seem to wind up in the courts, Professor Balkin's attempt to determine the "originalist" interpretation of that clause may well be replayed in the Supreme Court.

His tongue in cheek "plain reading" conclusion is that every president since Zachary Taylor has been ineligible to hold the office.

His reasoning is as follows:

Now the key issue for an original meaning originalist...is whether "at the time of adoption of this Constitution" refers only to "Citizen of the United States" or also to the antecedent clause, "a natural born Citizen. We found out that, according to accepted grammatical rules as they existed in 1787, the use of commas marking off the words "or a Citizen of the United States" means that the phrase "at the time of the adoption of this Constitution" refers to both preceding clauses, i.e., both to "natural born Citizen" and to "Citizen of the United States."

In other words, the original public meaning of the clause says that to be President you either have to have been a natural born Citizen at the time of the adoption of the Constitution, or otherwise a citizen of the United States at the time of adoption, i.e., 1789. That means that persons born after 1789 aren't eligible to be President of the United States. And that includes not only John McCain, but Hillary Clinton and Barrack Obama.

Professor Balkin doesn't stop there and by the time his is through parsing Article II, he makes a case that not even George Washington legally held the office.

An alternate conclusion is simply that our founding fathers were lousy grammarians and had a bit of trouble over the placement of commas.

Since this is one case I won't ever have to deal with, my own interpretation of Article II, Section 1 is more simplistic. "Native born" is not synonymous with born in the USA and simply means born on American territory, i.e. not "foreign" born. At the time of his birth, the Canal Zone was clearly American territory by treaty. Senator McCain has never been a citizen of any other country and thus is no more ineligible to take the oath of office than George Washington was.

Simon at Stubborn Facts does a more serious and thoughtful job of analysis here.

204 years ago today - Marbury v. Madison decided.

In the Presidential election of 1800, Democratic-Republican Thomas Jefferson succeeded Federalist John Adams, becoming the third President of the United States. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled Congress were still in power. Congress passed the Judiciary Act of 1801 which modified the famous Judiciary Act of 1789 by establishing 10 new District Courts, expanding the number of Circuit Courts from 3 to 6, adding additional judges to each Circuit,reducing the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court and incidentally giving the outgoing President the opportunity to appoint all these new Federal judges and justices of the peace.

On March 2, two days before his term was to end, Adams, in an attempt to preempt the incoming Democratic-Republican Party controlled Congress and Administration, appointed sixteen Federalist circuit judges and forty-two Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, now known to history as the "Midnight Judges", were all located in the Washington D.C. and Alexandria, Virginia area. One of these appointees was William Marbury (pictured on left), a native of Maryland and a prosperous financier as well as an ardent Federalist. Marbury was active in Maryland politics and a vigorous supporter of the Adams presidency. He had been appointed to the position of justice of the peace (now known as a Magistrate Judge) in the District of Columbia. The term for a justice of the peace was five years, and they were "authorized to hold courts and cognizance of personal demands of the value of 20 dollars".

On March 3, 1801, the appointments were approved en masse by the Senate; however, to go into effect, the commissions had to be delivered to those appointed. This task fell to John Marshall, who, even though recently appointed Chief Justice of the United States, simultaneously continued as the acting Secretary of State at President Adams' personal request. Marshall's term as Secretary of State ended on March 4. (Dual officeholding in both the executive and judicial branches would be viewed as both unconstitutional and a clear conflict of interest today.)

Most of the commissions were delivered, but it proved to be impossible to deliver all of them before Adams' term expired the next day. Because these appointments were routine in nature, Marshall assumed that James Madison, the new Secretary of State, would see they were delivered, since they had been properly submitted and approved, and were, therefore, legally valid appointments. On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson ordered Levi Lincoln, who was the new administration's Attorney General and acting Secretary of State until the arrival of James Madison (picture above on right), not to deliver the remaining commissions, including Marbury's. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void.

The newly sworn-in Democratic-Republican Congress immediately voided the Judiciary Act of 1801 with their own Judiciary Act of 1802, so that the Judicial branch once again operated under the dictates of the original Judiciary Act of 1789. In addition, it replaced the Court's two annual sessions with one session to begin on the first Monday in February, and "canceled the Supreme Court term scheduled for June of that year [1802] ... seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation."

Marbury filed a petition for writ of mandamus directly in the Supreme Court. A petition for writ of mandamus asks the Court to require a governmental official, in this case Madison as the new Secretary of State, to take a ministerial action -- an action that doesn't require any discretion - in this case the delivery of the already signed and approved commission. Since simple delivery of a document that is validly issued would seem to be a ministerial act, the case seemed to be a slam dunk from Marbury's point of view. But the first question that had to be answered was whether the Supreme Court was even permitted to receive a court case originally filed there (as opposed to appeals brought from other lower courts). So the first question was, "Does the Supreme Court have the authority to consider a petition for writ of mandamus?"

Section 13 of the Judiciary Act made it clear that it did:

The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . . . to any courts appointed, or persons holding office, under the authority of the United States.

However, the Constitution had this to say in setting up the Supreme Court:
U.S. Const. art. III, Section 2 Clause 2:

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

In other words, the only times under the Constitution that the Court has original jurisdiction is if one of the parties is an ambassador, or a public Minister, or a state. Justice Marshall and his colleagues held that Section 13 of the Judiciary Act violated the Constitution when it gave the Court original jurisdiction for petitions for writs of mandamus. The bolded portion above is what the Court held was unconstitutional.

The result was Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) now regarded as the first landmark case in United States law and the basis for the exercise of judicial review under Article Three of the United States Constitution. The opinion was issued 204 years ago today on February 24, 1803. The Court handed down a unanimous (4-0) decision authored by the now new Chief Justice Marshall, that Marbury had the right to his commission but the court did not have the power to force Madison to deliver the commission, on February 24, 1803.

I'll spare you any lengthy legal analysis but the key question was whether Congress could go beyond the Constitution to expand the court's jurisdiction to take mandamus cases.

Marshall held that Congress does not have the power to modify the Constitution's grant of original jurisdiction to the Supreme Court. Consequently, he found that the Constitution and the Judiciary Act conflict. Marshall wrote that Acts of Congress that conflict with the Constitution are not valid law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review.

In support of this position Marshall looked to the nature of the written Constitution-there would be no point of having a written Constitution if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?", wrote Marshall.

Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other, it is a court not the legislature or executive branch that must decide which law applies. Finally, Marshall pointed to the judge's oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before the "laws of the United States." The core of Marshall's reasoning is this passage from the opinion:

It is emphatically the province and duty of the judicial department [the judicial branch] to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law [e.g., a statute or treaty] be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

The power of judicial review is often thought to have been created in Marbury, but actually the doctrine has roots in England that go at least as far back as 1610. The idea that courts could declare statutes void was well known in the American colonies. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.

The concept was also laid out by Hamilton in Federalist No. 78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Among the seldom mentioned ironies of this case are:

1) In what would be a clear judicial conflict of interest by today's standards, Marshall not only participated in a case he was involved in as a player if not a party, but he wrote the opinion for the court!

2) Marshall as Chief Justice wrote an opinion which essentially placed the blame for the fact that Marbury was out of luck on Marshall as Secretary of State who failed in his duty to deliver the commissions before midnight on March 5, 1801!

3) Marshall and Jefferson were not only bitter political enemies, they were cousins!

Food fight at the OK Corral (with apologies to Tombstone, Arizona).

Wyoming - where the buffalo roam - when it isn't 30 below zero and where hurling french fry "missiles" will cost you $60 or get you a date with a judge.

Apparently Laramie wasn't big enough for three 13 year old girls who met at high noon in the school cafeteria. No word on who has the fastest fries in the west.

In the event of an accident, the heck with the kid - save the beer!

Tina Wiiliams of St. Augustine, Florida was arrested for driving under the influence of alcohol. When she was stopped, police found a 24 pack of Busch beer securely belted into the front passenger seat while a 16 month old child was riding completely unsecured in the back seat.

Dueling Law Professors.

Over at Balkanization, Brian Tamanaha, one of my favorite "outside the box" thinkers among law professors, has another of his interesting posts in which he takes to task the current model of legal education. As Brian notes, this model emphasizes "interdisciplinary study" over professional training for law students and academic research and writing over teaching for law professors.

Another law professor I admire greatly, Daniel Solove, posts this counterpoint over at Concurring Opinions, in which he defends the current educational model.

Both of these dueling law professors make some excellent points but on balance, I'm siding with Professor Tamanaha on this one. I grant Professor Solove's point that studying the history, philosophy and sociological impact of the law is not a bad thing. (A point succinctly made in the movie "Animal House" with Faber College's motto - "Knowledge is Good.") However, granting that point, the problem is that most law school graduates actually plan to practice law - a profession they are ill equipped to engage in after three years of purely "academic" study in today's law school school environment.

The result is very bright, well educated men and women who, unless they get substantial additional training in a law firm or government agency, don't know how to properly advise or represent a client in the real world outside the halls of academe.

In the 30 years I have been a lawyer and judge, I have observed a steady deterioration in the overall level of professional competence in the way in which lawyers interact with clients and with each other and I attribute that decline directly to the lessened emphasis in law schools on instilling professionalism and teaching professional skills.

As an accrediting agency, the ABA has resisted any experimentation which might provide more balance between academic study and nuts and bolts professional training. Can you imagine the result if the AMA forced the country's medical schools to focus on the history, philosophy and sociological impact of medicine and the healing arts but neglected teaching medical students how to properly examine, treat or operate upon a patient?

Brian and Dan have performed a tremendous service to the legal profession by beginning a dialog that needs to continue. I fervently hope that it will.

Virginia is for lovers, not swordsmen.

Apparently in Virginia, it is perfectly legal to carry a gun past the metal detector set up at the entrance to that state's Capitol but they draw the line at swords.

A man dressed like an 1880's sheriff and appropriately named for the 11th Chief Justice of the United States (pictured), apparently wanted to discuss changes in the Old Dominion's concealed weapon law with some legislators. He advised the Capitol Police at the door that he had a sword concealed in his cane and was forced to leave it behind although he apparently could have brought a gun into the building. I guess the last guy they let carry a sword into the Virginia Capitol was Robert E. Lee.

Via InRich.com

Canadian asserts an "inalienable right to publish whatever the hell I want?"

Canada doesn't have a First Amendment (and after seeing this clip, maybe they should) but it seems that at least the concept of freedom of the press is alive and well in the hearts of some of our cousins to the north.

I also have to admit that I loved seeing an officious bureaucrat get dressed down by a pro.

If you haven't been keeping up with this, the Human Rights Commission of the Province of Alberta (Canada) is investigating a complaint made by a couple of Calgary Muslims against a publication called The Western Standard which offended some in the Muslim community two years ago by re-publishing those Danish cartoons depicting the prophet Muhammad.

More Darwin Awards wannabes.

What's wrong with this picture? Well let's see. We have several guys soaking in a pool of water while they soak up more than a few beers and listen to some tunes thanks to all the electrical cords connected to an apparently live power strip floating on a pair of flip-flops!

Assuming they have not been removed from the gene pool by qualifying for a Darwin Award, these idiots are awfully lucky.

Via Splurch.

From HOWT's "Stating the Obvious" Department .

Ranking right up there with news items like "Dog Bites Man" or "Dr. Phil Says Britney Spears Needs a Shrink" is this gem from the Palmetto State.

The South Carolina Court of Appeals has determined that it is indeed contempt of court to endorse a court order with the phrase "Kiss my ass."

Judith Law will now have to serve 90 days in jail for endorsing her probation revocation order with a suggestion that Judge Diane Goodstein osculate upon Law's buttocks.

South Carolina now joins the United States District Court in Georgia in holding that telling trial court judges to "Kiss my ass" is a singularly counter-productive persuasion technique.

Of course, if Ms. Law had the right attorney, he could probably have found a slightly more subtle way of getting that message across.

Adventures in intellectual property law.

As we begin 2008, I would be remiss if I didn't take brief note of two intellectual property stories from the last week of 2007.

First, the head of Egypt's Supreme Council of Antiquities told reporters on December 25 that the country's parliament would likely pass a law requiring anyone who reproduces one of its famous monuments to pay royalties.

I am hardly an expert on international IP law but under U.S. copyright law, at least, the design of a building can be copyrighted, but only if it was created on or after December 1, 1990. Experts disagree on the exact completion date of the various pyramids, but it seems fair to say that we're talking about things built at least 3000 years before that. In any event, there is still the problem that the design of a pyramid involves making it in the shape of, well, A PYRAMID, and I don't think any nation recognizes that you can copyright a geometric shape. (If you can, let me know, because I'm going to claim "trapezoid.")

If this law passes, I guess the Luxor Hotel in Las Vegas (shown) is going to owe the Egyptian government a lot of money.

In other IP news, the Recording Industry Association of America (RIAA) has decided that even more of their customers are thieves. The RIAA is apprently preparing to sue an Arizona man who copied over 2,000 songs to his computer, presumably for download to his mp3 player. The wrinkle here is that he legally purchased every one of the CD's from which he "ripped" the songs.

The irony I see here is that Sony Corp. is an RIAA member and in that role has pushed for RIAA's aggressive actions but if you happen to own a Sony Walkman Video mp3 player, the accompanying instructional video tells you how to load it with music as follows:

So you have your brand new Walkman video MP3 player from Sony. Now let's get some music on it. There are two main ways to get new music for your Walkman video player. You can rip CD's that you already own, and you can get music from multiple online stores. So let's rip some CD's.

I just went out and bought a new album. With the CD in the drive, I can navigate Windows Media player to the "rip" tab....

(They next demonstrate how to rip this Sony CD.)

Strangely, Sony neglects to mention that any of their customers who follow the company's instructions are thieves as far as Sony is concerned.

Happy New Year!

I want to wish a very Happy New Year to the 21,887 people who visited Have Opinion, Will Travel over the last year and I hope to see you here again in 2008.