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Saturday, August 24, 2002
Recharging the batteries: Traditionally, when faced with the choice between spending the last week of August -- (a) behind a computer screen in a downtown office tower, where outside the streets are sweltering, and inside the air conditioning makes it feel like mid-January, or (b) at the sea shore, on the beach, playing miniature golf with my son, walking on the boardwalk, eating pizza and caramel corn -- I choose the latter. And so it is again this year.
This Web log will next be updated on September 2, 2002. Until then, there's plenty below and in the archives from which to choose. I hope that you too, between now and when I return, will take the opportunity to get up from behind the computer screen and go outdoors to relax and enjoy this wonderful planet on which we reside. Posted at 00:59 by Howard Bashman A link to my original coverage of the U.S. Supreme Court's ruling that declared the death penalty unconstitutional for the mentally retarded: Those visiting here thanks to my recent essay on Slate might be interested to see what I had to say about the U.S. Supreme Court's ruling in Atkins v. Virginia just after that decision issued. If so, you can access my post of June 21, 2002 by clicking here. Posted at 00:41 by Howard Bashman Some analysis of the Fifth Circuit's affirmance of former Louisiana Gov. Edwin Edwards's conviction: First, today's ruling proves the old adage that even Alan Dershowitz doesn't always win. Several aspects of the Fifth Circuit's opinion issued Friday are worthy of mention. But first, a special thank you to the Fifth Circuit for switching the format of its opinions earlier this week from html to pdf. Beginning on page 6 of the opinion, the court discusses the defendants' challenge to the trial court's decision to keep the jurors' identities and places of work secret. The opinion contains a clear explanation of when that is proper and concludes that this case was one such instance. The second part of the decision worth noting starts on the bottom of page 24. Co-defendant Bobby Johnson had a bad heart condition and a fear of doctors. Instead of getting his condition addressed through bypass surgery long before trial, he pursued other, more questionable treatment that proved ineffective. Then, in the very middle of the trial, he required emergency surgery and was forced to be absent for a while. The trial court ultimately ruled that the trial could proceed against Johnson in his absence. And today the Fifth Circuit upheld that ruling. Finally, no high profile criminal trial would be complete without a troublesome juror. This trial involved a juror (see page 35 of the opinion) who repeatedly violated the trial court's instructions, brought notes from home into the deliberations, refused to discuss the case with any of the other jurors during the deliberations, and then was less than honest and forthcoming to the trial court when it conducted an inquiry into the juror's conduct. This all caused the trial court to dismiss the juror on the eleventh day of deliberations. The defense, which of course would have benefited from an obstinate juror, challenged that dismissal on appeal. The Fifth Circuit's ruling rejected the defendants' arguments challenging the dismissal of this juror. The opinion, at page 40, even includes a discussion of jury nullification. Posted at 00:14 by Howard Bashman Friday, August 23, 2002
Repetition does not always equal persuasion: Akhil Reed Amar is back at it, this time with his brother Vikram David Amar in tow. (Kinda makes me want to bust out my middle name, Jonathan, for the discussion.) ARA, joined now by VDA, is back to press his argument that U.S. Supreme Court Justices should be subject to term limits. As I said when ARA first broached the subject, this proposal is quite bizarre. So bizarre, in fact, that I couldn't resist returning to the subject later that day to deride it further. So, for what it's worth, HJB still votes "no" on term limits for U.S. Supreme Court Justices.
Posted at 23:59 by Howard Bashman
Judge Posner on a T-shirt: Today, in a short but worthwhile opinion, Seventh Circuit Judge Richard A. Posner addresses whether attorneys' fees should be allowed in a willful but minimally harmful case of copyright infringement involving T-shirt designs. Click here to find out the answer. And this reminder for district judges -- a little explanation goes a long way: Since the factors aren't exclusive, and seem rather miscellaneous and ill-assorted, they leave the decision on whether to grant or deny attorneys' fees to the prevailing party in a copyright case pretty much to the discretion of the district judge, subject to necessarily highly deferential appellate review--for the vaguer a standard to be applied by a trial judge, the greater his roaming room. But we do have to insist that the judge explain the grounds for his decision in sufficient depth to enable their reasonableness to be determined; otherwise there would be no appellate control at all over such decisions.The lack of an adequate explanation in this case has won the trial judge another chance to visit with the record. Posted at 23:54 by Howard Bashman An Australian law blog: It's too soon to call Ken Parish the long lost Australian Volokh, but Ken does describe himself as "a sometimes opinionated Australian legal academic based in Darwin, Northern Territory." Posted at 23:48 by Howard Bashman The Eleventh Amendment and its applicability in bankruptcy cases: Today the U.S. Court of Appeals for the Seventh Circuit issued a decision that is a must read for anyone interested in the ongoing debate over the Eleventh Amendment, States' rights, sovereign immunity, and whether States waived their sovereign immunity in the bankruptcy context by ratifying the U.S Constitution. The conclusion of Circuit Judge Daniel A. Manion's opinion, on behalf of a unanimous three-judge panel, states in pertinent part: For the foregoing reasons, we conclude that Congress lacked authority under Article I of the Constitution to abrogate state sovereign immunity by enacting Section 106(a) of the Bankruptcy Code. As such, the State is entitled to Eleventh Amendment immunity from Mrs. Nelson's bankruptcy adversary proceeding. Furthermore, we reject Mrs. Nelson's argument that the States waived their sovereign immunity in the bankruptcy context by ratifying the Constitution under the "plan of the Convention." We also conclude that the State did not waive its sovereign immunity from suit in Mrs. Nelson's personal bankruptcy case by filing a proof of claim in a separate bankruptcy proceeding for the corporation that employed her. Finally, we reject Mrs. Nelson's argument that the bankruptcy court may exercise in rem jurisdiction over her adversary proceeding against these defendants.The opinion contains a scholarly review of the current state of the law on these controversial issues. Those who have been considering whether to purchase the book on these subjects that Ninth Circuit Senior Judge John T. Noonan, Jr. has written (click here for my earlier posting about that book) should be sure to read this Seventh Circuit opinion first. It's available free of charge right here and right now, and it's very nicely done. Posted at 23:24 by Howard Bashman Undercover informant sues for unlawful termination: Never thought I'd see anything quite like this decision, which the U.S. Court of Appeals for the Sixth Circuit issued today. Posted at 23:11 by Howard Bashman Doing the cybersquat: The U.S. Court of Appeals for the Fourth Circuit today decided two appeals involving the Anticybersquatting Consumer Protection Act. Cases arising under that law seem to have catchy names. Today's offerings: Porsche Cars North America, Inc. v. Porsche.net and Harrods Limited v. Sixty Internet Domain Names. Posted at 23:05 by Howard Bashman Attorneys' fees and the Private Securities Litigation Reform Act: Today the U.S. Court of Appeals for the Second Circuit grappled with the unclear statutory language that Congress enacted in the Private Securities Litigation Reform Act of 1995 to require courts to impose sanctions on parties involved in abusive securities fraud lawsuits. As the court's lead opinion explains, "While the mischief that Congress was addressing is clear, the statutory language Congress employed is not." Chief Judge John M. Walker, Jr. concurred in the judgment in an opinion that criticized the majority's reliance on legislative history. Making something of a surprise cameo appearance in both opinions is Third Circuit Judge Anthony J. Scirica, who heads the rulemaking process for the federal judiciary. Judge Scirica had some advice for Congress when it was considering the provisions discussed in these opinions, but Congress only followed part of it, which perhaps explains why the resulting law proved less than optimal. Posted at 22:39 by Howard Bashman Hey Ninth Circuit -- you can save time by certifying questions to Prof. Volokh: Just yesterday, the U.S. Court of Appeals for the Ninth Circuit certified some complicated questions of California law to the Supreme Court of California. You can access the Ninth Circuit's certification order here. The Ninth Circuit's order requires the parties to report back on the status of the matter six months after California's highest court accepts the certification and every six months thereafter. Well, today UCLA School of Law Professor Eugene Volokh, over on his blog, answers the certified questions. Didn't quite take him six months, a year, or even longer, did it? Posted at 22:18 by Howard Bashman Fifth Circuit affirms former Louisiana Gov. Edwin Edwards's criminal conviction: You can access the Fifth Circuit's ruling, issued this afternoon, at this link. More commentary later, if warranted. Posted at 17:49 by Howard Bashman No one is to blame: Michele Landis Dauber, a recent law clerk to Circuit Judge Stephen Reinhardt and now an assistant professor of law at the Stanford Law School, argues in an essay on law.com that the Ninth Circuit isn't to blame for its high reversal rate. Rather, the responsible party is the U.S. Supreme Court. And indeed she's absolutely correct -- no U.S. Supreme Court and the Ninth Circuit would never be reversed. It probably wouldn't be affirmed much then either. (Link courtesy of Sam Heldman; this post's title courtesy of Howard Jones.) Posted at 12:34 by Howard Bashman In today's Los Angeles Times: Today's edition of The Los Angeles Times contains this report on an oral argument yesterday before California's Second District Court of Appeal in an appeal from an order prohibiting Burbank City Council meetings from beginning with a sectarian prayer. Today's LATimes also contains this article on the ruling released yesterday by the Foreign Intelligence Surveillance Court. That ruling is discussed in more detail in the post immediately below. Posted at 08:39 by Howard Bashman In Friday's newspapers: Both The New York Times and The Washington Post report (see here and here, respectively) on the rather extraordinary rebuke that the U.S. Department of Justice received back in May 2002 from the U.S. Foreign Intelligence Surveillance Court. As the first paragraph of The Post's article explains: The secretive federal court that approves spying on terror suspects in the United States has refused to give the Justice Department broad new powers, saying the government had misused the law and misled the court dozens of times, according to an extraordinary legal ruling released yesterday.The NYTimes article reports that the Justice Department misled the court some seventy-five times. You can access the court's order from May 2002, just made public yesterday, at this link. Posted at 00:12 by Howard Bashman Thursday, August 22, 2002
Rhythm stick: Over the past seven days, this blog has had more than 13,000 page hits. Thanks for visiting, everyone!
(Fans of the referenced song can, using RealPlayer, see and hear Kirsty MacColl sing it via this link.) Posted at 23:34 by Howard Bashman Beam me up, Scotty: law.com is reporting that the U.S. Court of Appeals for the Second Circuit is on the verge of regularly conducting appellate oral arguments via video conference. Next on the agenda, technology soon will allow for judges to be replaced by super-computers. Posted at 23:17 by Howard Bashman Today's must read: Back on August 13th, I mentioned here the account of a Texas resident whose efforts to avoid federal jury service weren't appreciated. Today law.com has posted an article containing the complete text of the order to show cause to avoid contempt of court that the juror received from U.S. District Judge Fred Biery. Here is an excerpt: Although Mr. Williamson could live in a country which does not require jury service, such as Iraq, Cuba, North Korea, or Russia, Mr. Williamson wants the benefits of American citizenship but apparently without fulfilling the responsibility. Mr. Williamson's arrogant attitude is reminiscent of the Vietnam era appellation given to those who were all in favor of war so long as someone else made the military sacrifice. They were known as the "chicken hawks." (During the seven years that Mr. Williamson has whined, I and at least one other local federal judge of whom I am aware, have reported to jury service three times. I will be reporting for jury service during the first part of October 2002.)To see the full text of Judge Biery's order and an accompanying news story, click here. Update: And this news story from today's edition of The Hartford Courant provides another example of how not to respond to a jury summons. Posted at 23:08 by Howard Bashman Who says what?: Thanks also to Law Professor Eugene Volokh and Weblogger extraordinaire Pejman Yousefzadeh for their especially kind words about my Slate essay. I promise to mention it here a whole lot less often tomorrow and probably not at all on Saturday. Posted at 22:47 by Howard Bashman A stunning decision from California's highest court: The Supreme Court of California issued a 6-1 ruling today in a criminal case that makes it more difficult for trial courts to require defendants to wear stun belts. The dissenting Justice, meanwhile, criticized the majority for relying on Google.com. (Fortunately, in this blog's three and a half months of existence, no one has criticized me for my heavy reliance on Google.) Today's majority opinion begins: In this case we must determine under what circumstances a defendant in a criminal trial in California may be required, as a security measure, to wear a remote-controlled electronic "stun belt" -- a device that, in its current design, delivers an eight-second long, 50,000-volt, debilitating electric shock when activated by a transmitter controlled by a court security officer. The Courts of Appeal have reached conflicting conclusions with regard to whether the principles set forth in this court's decision in People v. Duran (1976) 16 Cal.3d 282 (Duran), establishing the limited circumstances under which a defendant may be subjected at trial to physical restraints such as shackles or manacles, apply as well to the use of a stun belt, and we granted review in part to resolve that issue. In addition, because this is the first occasion this court has been called upon to address the use of a stun belt in courtrooms in California, we also determine whether there are features and aspects of such a device that are sufficiently distinct to require a trial court to consider additional factors before compelling a defendant to wear one during a criminal trial.In contrast, the dissenting Justice ends her opinion in this manner: We are a court of review. The question for review here was whether the judgment of conviction must be overturned because defendant was required to wear a stun belt, and the answer is, we should have affirmed the judgment because no prejudice was shown. Full stop. The question in this case was not whether stun belts pose serious medical risks for persons with heart problems or other medical conditions, nor was it whether the current design of the stun belt could be improved upon. There is absolutely no evidence in the record bearing on these questions. In the absence of such evidence, we had two choices. We could have deferred to the Legislature, which can make law after hearing from distinguished experts on all sides of controversial issues. Or we could have waited for a case that raised these questions on an adequate record. Instead, the majority, rushing to judgment after conducting an embarrassing Google.com search for information outside the record, has tied the hands of the Legislature, to the likely peril of judges, bailiffs, and ordinary citizens called upon to do their civic duty.law.com's California affiliate, The Recorder, offers this additional coverage of today's ruling. Posted at 22:28 by Howard Bashman Dahlia Lithwick schools us on comparative legal studies: And she concludes, in a provocative yet thoughtful essay just posted on Slate, that when it comes to suspects caught in the post-September 11th dragnet, the British are doing a better job of living up to the principles enshrined in the U.S. Constitution than we are. Posted at 19:24 by Howard Bashman Showing signs of sanity: Zacarias Moussaoui prefers to deal with lawyers only indirectly, The Associated Press reports here. Posted at 16:35 by Howard Bashman True story: It takes just one essay on Slate for a nationally-syndicated talk show host to want to interview me live, on the air, for twenty minutes tonight. But I've turned down that kind invitation, because I have said everything in the essay that I wanted to say, and I haven't said all the things that I didn't want to say. Now if someone were to offer a national television appearance -- that might just prove to be too tempting to refuse. Posted at 15:45 by Howard Bashman One possibly negative consequence of my Slate piece: A female reader just sent along the following email: What a great article - it is so nice to see someone with a logical, unemotional perspective. I have been making the same argument for years and people just don't get it. I really enjoyed your clear and concise explanation.Uh oh! Now women I've never even met find me to be "logical and unemotional." Posted at 15:14 by Howard Bashman An FAA form that's too vague and confusing to support criminal charges for lying: The U.S. Court of Appeals for the Ninth Circuit has ruled today, in a quite short and interesting opinion you can access here, that Federal Aviation Administration Form 8500-8 -- a medical information form that pilots must complete each year to achieve recertification -- is too vague and ambiguous to support federal criminal charges for materially false responses. The opinion is also notable because it explains the game of "Dizzy Izzy": "Dizzy Izzy" is a contest, often put on between innings of baseball games, in which two spectators are invited down to the field, where they place their foreheads on top of a baseball bat standing on the ground and then circle the bat a number of times, after which they must run in a straight line down the field.I observed my first game of "Dizzy Izzy" just a few weeks ago between innings at the home field of this minor league baseball team. Posted at 14:06 by Howard Bashman I'm right, InstaPundit says: Whew! I was hoping for that. Plus, I'm all for anything that encourages the public en masse to download a law review article, or two. Posted at 10:56 by Howard Bashman Clamoring for more: Now that my Slate essay is available online, people are emailing me or posting elsewhere to encourage me to write more stuff. First, though, a quick thank you to four individuals who have inspired me to write or keep writing this Web log for their kind words about my Slate piece: Denise Howell, Jeff Cooper, Ernie the Attorney, and Sam Heldman. As for whether there will be more, what do you think this blog is, chopped liver? But seriously -- I think there will be more. Happily, the person at Slate who originally encouraged me to write something was already encouraging me to write another thing before the piece published yesterday hit your computer screen. But I'm not writing another thing just yet, so be patient or breathe a sigh of relief as appropriate. Last night I received an email that began: "I posted this in the discussion forum at Slate, but, frankly, there's a lot of dreck there and I'm not confident that anyone interested in the issue will read it." I'll try to keep that in mind. Posted at 09:40 by Howard Bashman Today at National Review Online: Jonathan Adler has his long-awaited (at least by me) piece that refutes some attacks that environmentalist groups have launched against Fifth Circuit nominee Priscilla R. Owen. (O.K., Jonathan, there's your link; now you can link back to my Slate piece at The Corner. Update: Thanks, Jonathan -- you didn't waste any time!) Also at NRO, this essay examining a dispute between Connecticut's Attorney General and that State's highest court. You can access the Connecticut Supreme Court's ruling in question at this link. Posted at 09:23 by Howard Bashman Hey Second Circuit, Pete du Pont says you're wrong too: In a forceful essay that appeared yesterday on OpinionJournal, former Delaware Governor Pete du Pont castigates the Second Circuit's decision upholding Vermont's campaign finance reform law. He also observes that George Washington probably wouldn't have liked the law or the Second Circuit's ruling either. You can access my original report on that decision, which contains links to the majority and dissenting opinions, by clicking here. Posted at 09:05 by Howard Bashman In Thursday's newspapers: The Christian Science Monitor explains the pretrial conditions of confinement for Zacarias Moussaoui. The Washington Post contains a report that the trial judge considering whether the U.S. military may continue to detain Yaser Esam Hamdi as an enemy combatant has allowed the government to take an interlocutory appeal to the U.S. Court of Appeals for the Fourth Circuit from the order requiring the government to turn over more evidence to justify the detention. Next, the Fourth Circuit must decide whether it will permit an appeal now. Posted at 00:30 by Howard Bashman Wednesday, August 21, 2002
Who is Ray Lupa?: The Recorder also reports on a California federal court case involving the Religious Land Use and Institutionalized Persons Act. The article happens to explain that the Act is "known as RLUIPA (pronounced RAY-lupa)." So, Ray Lupa isn't a person; rather, it's a "law [that] was created to give religious groups a legal tool to fight overly strict local land rules." You can access an entire Web site devoted to Ray Lupa (the law, not the person) at this link.
Posted at 23:57 by Howard Bashman
California Supreme Court's justices deluged with amicus briefs: That's what can happen when a court is hearing several cases of great concern to the business community, this article from law.com affiliate The Recorder reports. Posted at 23:57 by Howard Bashman These two women feel ostracized for supporting a woman: I'm not really sure what to make of this article written by two young supporters of Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit. Posted at 23:44 by Howard Bashman Aren't there bigger fish to fry?: The other day (see my post here), I mocked The Associated Press for seeming to mix metaphors in an article reporting that the "dirty bomber" may be a "small fish." Today, courtesy of the U.S. Court of Appeals for the Tenth Circuit, I learned that it is a federal crime to fish in violation of state law and then transport the catch across state lines. You can access here the Tenth Circuit's opinion. Posted at 23:30 by Howard Bashman On the MSN.com front page: Just received an email in response to my Slate piece (click here to access it) stating "Interesting essay on MSN on line. Thanks. Something to think about." The email caused me to surf on over to the MSN.com site, and there I saw that my essay was the lone Slate item currently mentioned on the MSN.com page. That was surprising, but in a very pleasant way. Posted at 23:17 by Howard Bashman Privately funded educational junkets for federal judges -- a cause for concern?: Back on August 8, 2002, I posted here to announce that my September 2002 appellate column, to be published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, will address the continued controversy over privately-funded educational junkets for federal judges. Since then, I have received from readers of "How Appealing" helpful materials and emails sympathetic to each side of the controversy. The organization leading the charge against the current state of things, Community Rights Counsel, has provided me with a print copy of its lengthy report on the subject. On my train ride home this evening, I began reading the report, which I had previously spent some time reviewing online. At its outset, the report explains that some conservative judges had attended educational seminars sponsored by conservative organizations and -- shockingly! -- emerged to rule in quite conservative ways. Perhaps what is needed is for judges associated with one end of the political spectrum to be allowed only to attend educational presentations sponsored by the opposite side. For example, Ninth Circuit Judge Stephen Reinhardt would only be able to attend educational seminars sponsored by George Mason University Law School or Richard M. Scaife, while U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas would only be able to attend seminars sponsored by the ACLU or similar groups. I can't help but think that these three members of the judiciary would emerge from those seminars essentially unaffected by what they had learned. Now, of course, my discussion to this point ignores the important issue of appearance of impropriety, but on the matter of actual impact, I remain skeptical. Posted at 22:48 by Howard Bashman Now available online: My Slate essay. Posted at 18:27 by Howard Bashman Examining the minute particulars of jury nullification The author of the Minute Particulars Web log is back from jury duty, and he shares both his views and the thoughts of a moral philosopher on the general subject of jury nullification. If you'd like to see my original post that launched the blogosphere into a tizzy over this issue, click here. Posted at 17:07 by Howard Bashman To bungee-jump or not to bungee-jump, that is the question: The plaintiff in this opinion that the U.S. Court of Appeals for the Eighth Circuit issued today received a $6,180,000 settlement for injuries received while bungee-jumping at a fair in St. Louis. Thus, I say no bungee-jumping for me. Posted at 16:41 by Howard Bashman A sad coincidence, or doomed from the outset?: The U.S. Court of Appeals for the Seventh Circuit today affirmed a 408-month sentence (or, as you and I might say, 34 years) of imprisonment given to a defendant who had pleaded guilty to conspiracy to distribute 50 grams or more of crack cocaine. The defendant's last name? Partee. This result provides just one more reason to stay away from illegal drugs, no matter what your last name happens to be. Posted at 16:22 by Howard Bashman In this version of Jordan v. Jordan, Michael and Nike win: And the Jordan Blouse Division of Chattanoga (just one "o"; I've checked and checked again) Manufacturing, Inc. loses. You can access here the Seventh Circuit's opinion in this case, issued today. Posted at 16:09 by Howard Bashman The spotlight nears: Within the hour, an essay I wrote will be published on Slate's Web site. The piece addresses whether the majority benefits or is harmed when the U.S. Supreme Court relies on public opinion to determine the Constitution's meaning. And now I can publicly observe that Slate Senior Editor Dahlia Lithwick is not just an amazing author, but also the best editor that one could ever hope to have. So how does one get an essay published on Slate? I'm reminded of the old Steve Martin routine, where he promises to share the secret of how to become a millionaire and never pay any taxes: step one -- obtain one million dollars; step two -- don't pay any taxes. Update: For those who might be thinking -- hey, the hour's up and it's not there -- patience, my good readers, it's coming. Posted at 15:11 by Howard Bashman A double dose of Hamdi: Today's two columnists on FindLaw don't offer the eclectic mix of views that one typically finds there. Instead, they both wax longiloquent about Yaser Esam Hamdi. In his essay, Law Professor Michael C. Dorf suggests that Senator Tom Daschle could be the next person declared an enemy combatant. I enjoy arguments based on exaggeration as much as the next person, but that's just a bit improbable. In the second piece, Anita Ramasastry, an Assistant Professor of Law at the University of Washington School of Law in Seattle, asks "Do Hamdi and Padilla need company?" While the answer, probably, is "yes" -- after all, it must get quite lonely in a military brig when you're an enemy combatant -- Ms. Ramasastry is sensibly opposed to the idea of citizen internment camps. Posted at 14:34 by Howard Bashman Another "absurd" law struck down: The Supreme Court of Pennsylvania yesterday struck down a Pennsylvania law that prohibited a homosexual person from adopting his or her partner's child even while homosexual couples were permitted to adopt children related to neither parent. The court's ruling, which favors so-called "second parent adoptions," reverses a ruling of Pennsylvania's intermediate appellate court that upheld the law barring such adoptions. You can access the Court's unanimous ruling (which calls the law "absurd" three times) at this link. You can access news coverage of the ruling here, courtesy of The Philadelphia Inquirer. Posted at 14:11 by Howard Bashman Who ever would have known?: A site called "Unknown News," which features the catchy motto "if you're not pissed off, you're not paying attention," has discovered "How Appealing" thanks to my "forever and a day" post from last night. And the host of TalkLeft has conducted some independent legal research pertaining to the subject-matter of that same post, and she/they set(s) for her/their thoughts, umm, here. Posted at 13:41 by Howard Bashman One bad ruling and you're the next "Ninth Circuit": An opinion piece published this morning at National Review Online says that the U.S. Court of Appeals for the Second Circuit is the new Ninth Circuit based on the Second Circuit's recent decision upholding most of Vermont's campaign finance reform law. You can access my prior coverage of that ruling, including links to the majority and dissenting opinions, by clicking here. Posted at 09:36 by Howard Bashman Elsewhere in today's newspapers: The New York Times contains a bunch of letters to the editor about the University of North Carolina at Chapel Hill Islamic book flap (oh no, a pun). The Washington Post contains an op-ed on school choice, vouchers, and the Blaine Amendment. The Los Angeles Times contains this report on the Florida law requiring some women to publish their sexual histories before putting a child up for adoption. The LATimes also reports that Los Angeles is considering a law that would restrict "solicitors" at that city's International Airport to certain locations. And, no, it doesn't appear that the article is referring to attorneys who practice in the United Kingdom. Posted at 09:31 by Howard Bashman Who you callin' a hypocrite?: Today's edition of The New York Times contains an editorial describing the current state of the U.S. Supreme Court's States' rights-sovereign immunity-Eleventh Amendment jurisprudence as "judicial hypocrisy." Posted at 09:07 by Howard Bashman Where and when: I am so on the verge of saying where and when my op-ed piece will appear, because it's due to appear in the very near future. But then I'd be tempted to say a few words about the subject of my piece, and I'm not yet going to do that. Thanks to those of you who have emailed to say "congratulations" without knowing any of the details. In a totally unrelated development, I'm pleased to add Kausfiles to my list of recommended Web logs. This is something I've been meaning to do for some time and truly has nothing to do with where my piece is being published. I don't even know if Mickey reads "How Appealing." I do read his blog, though. For any who care, the final hit count tally for my blog yesterday was 3905. Posted at 08:31 by Howard Bashman Tuesday, August 20, 2002
Working that InstaMagic: Thanks to the kind proprietor of InstaPundit, this Web log has experienced some 3800 hits during the first twenty-three hours of today. That's some 800 more hits than "How Appealing" had on this site's previous busiest day. I am most thankful for the 1200 to 1500 hit this blog receives on an average day when it's mentioned nowhere. But a brief mention on InstaPundit, and the counter starts spinning out of control -- which is pretty cool in its own right.
In other news, it now looks fairly certain that my op-ed piece that is being published in a "real" media outlet will become available either late tomorrow or late Thursday, and when I'm able to drop the word "fairly" from that statement I will be sure to announce here precisely where and when you can find it. Posted at 23:00 by Howard Bashman Pure Posner: As I forthrightly noted in my very second post ever on this blog, one of my most favorite writers and thinkers in the entire federal judiciary is Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit. Why? Well, not only is he brilliant, but his style of writing is especially accessible to expert and non-expert alike. Today's he has provided another characteristic example of his excellence in judicial opinion writing. In this opinion: (a) he gets to criticize the parties for not understanding federal subject matter and removal jurisdiction; (b) he gets to say "But the Wright and Miller treatise is wrong" and, of course, Judge Posner is right; and (c) he gets to remind us that when parties agree to arbitrate a dispute under state law, the arbitrators get to have the last word on the facts and the law even if the ruling is wrong on the merits. I would provide excerpts of the good parts of this opinion except that the opinion itself is thirteen pages long and there are few if any non-good parts. So, if you've got a moment or two, take a look for yourself and see how a judicial opinion can be written in a manner that makes it both interesting to read and easy to understand. And then ask yourself why more judges don't write opinions meeting that description. Posted at 22:45 by Howard Bashman Innominate bloggers? In this opinion issued today by the U.S. Court of Appeals for the Eleventh Circuit, the court explains: "We will refer to the jury as 'innominate' rather than 'anonymous' because, after a thorough voir dire, the parties knew everything about the jurors except their names." Hmm, under that theory, maybe we should be referring to bloggers who don't reveal their actual names as "innominate" too? I'll wait for the blogosphere's scholar of classical languages, Dr. Weevil, to weigh in on this one. Posted at 22:20 by Howard Bashman Forever and a day: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled that federal habeas corpus relief is unavailable to a state prisoner confined on charges of civil contempt so long as the prisoner possesses the ability to comply with the order whose violation led to the prisoner's incarceration. When someone is jailed for civil contempt, he is said to hold the key to his own release, because the imprisonment lasts only as long as the defendant is unwilling to obey the court's order. Yet some lower federal court rulings have recognized a prisoner's right to release from confinement for civil contempt when the prisoner has shown there is no substantial likelihood he ever will comply with the order. Today, however, the Third Circuit ruled that the U.S. Supreme Court has never recognized such a limitation, and thus a state court may constitutionally keep a prisoner jailed for civil contempt indefinitely, so long as the prisoner retains the ability voluntarily to comply with the state court order that he is disobeying. What does "indefinitely" mean in this context, you may be wondering? The state prisoner whose case the Third Circuit was considering today has been behind bars since April 5, 1995. Seven years, four months, fifteen days, and counting, without having faced any criminal charges or having been proved guilty of a crime beyond a reasonable doubt. You can access the Third Circuit's opinion at this link. Posted at 22:02 by Howard Bashman Sexy, no; incredibly important, yes: A divided three-judge panel of the U.S. Court of Appeals for the First Circuit ruled today that the provisions of Title II of the Americans with Disabilities Act allow a private citizen to bring a damages suit against an unconsenting State. Circuit Judge Sandra L. Lynch wrote the majority opinion, in which Circuit Judge Kermit V. Lipez joined. Circuit Judge Juan R. Torruella dissented and would have held that the suit was barred by the Eleventh Amendment. You can access the court's opinion here. As the majority's opinion explains: "This case arises in the rapidly changing landscape of the Supreme Court's recent jurisprudence regarding the states' immunity from suit by private parties under federal law." A split among the federal appellate courts already exists on this issue, and the U.S. Supreme Court is quite likely to grant review in a case presenting this very issue sometime late next month. Posted at 21:40 by Howard Bashman The Supreme Court skullcap photo contest -- we have a winner! This Web log, focussed as it is on appellate courts, often discusses judging, but it is a rare occasion when I actually get to play the role of judge. This, however, is one of those rare instances. In a post that appeared on this blog at 2:50 p.m. eastern daylight time today, I wrote that "The opportunity thus remains open for any of this blog's readers to be the first to find such a photo online and email the link to me." Such a photo, in the context of the post, referred to a photo of the ceremonial skullcaps that U.S. Supreme Court Justices have worn to presidential swearing-in ceremonies. First, another thank you to Tony Mauro, who does a superb job covering the Supreme Court for law.com and The Legal Times. I was on the telephone this afternoon with a journalist who also writes about the Supreme Court quite frequently, and she too had nothing but wonderful things to say about Tony. Were it not for Tony's email to me on the subject of these skullcaps -- an email from which I quoted liberally here -- this contest would not have occurred. Now for the results: At 3:47 p.m., law student Alice W. of the already justifiably famous "a mad tea-party" blog wrote in with the first of her two entries. Her email asked only "similar?" To that I will now answer "yes," but the goal wasn't to find similar; rather, the contest was to find the actual thing, and sadly Alice W.'s first entry didn't do that. In a second email showing the time as 3:41, but which arrived after her 3:47 email, Alice W. wrote: "are they complete skullcaps, or do they have points? english judges apparently wore black ones when they pronounced death sentences (pre-1969). see the catholic encyclopedia for more general history on birettas. kind of cool. love historical tidbits." This second submission, I regrettably conclude, doesn't constitute an entry because it doesn't link directly to any photographs and merely seeks information. For the record, I didn't provide information beyond the publicly-available post to any contestants, even those who don't capitalize the first letters of their sentences. The winning entry was submitted by attorney Sam Heldman, he who once proposed a group blog with a different lawyer covering each circuit, he who sometimes tries to draw me into debates by using his blog to attack things I have posted here that seemed perfectly innocuous when written, and he who I sometimes torment by making passing references to in my posts in ways that only he would notice. Sam, congratulations! This win should be a cause for relief, as you have already publicly claimed victory on your blog. (Well, not quite, but almost.) Here is Sam's winning entry, via an email dated 4:28 p.m. The image that Sam submitted, by the way, is one of "Chief Justice William H. Taft administering the oath of office to Herbert Hoover on the east portico of the U.S. Capitol, March 4, 1929." The recipient of first runner-up status, who will serve out the balance of Sam's term if and when Sam discovers something better to do, is a visitor from the Greedy Clerks Board who is known by the name of Signed Epstein's Mother. Signed's entry, which clocked in at 4:42 p.m., is so clever that I must reproduce it in full: I accepted your challenge and found two pictures showing the caps worn by the Supreme Court justices. Although I looked thoroughly I could not find any picture of Chief Justice White wearing one when he swore in President Wilson. White was indeed hatless in the picture I do find of the swearing in ceremony. The best view of the hat was the picture of Chief Justice Taft swearing in President Hoover: [providing exactly the same photo submitted by Sam Heldman].You can see close-ups of the hats in question at the bottom right of two of the photos (here and here) available on the page to which Signed linked. Signed does achieve a moral victory, in that the original nomination of these caps arose in the context of the 1997 inauguration, and Signed is the only entrant to have found photos of the caps in use then. Is the name "Signed Epstein's Mother" too obscure for you? If so, click here or here to learn more. Congratulations to all three participants, and thanks for playing. Posted at 19:52 by Howard Bashman U.S. Supreme Court ceremonial cap photo contest is now closed: Unlike Haley Barbour and the RNC, I of course didn't offer any prize other than the never-ending fame that a fleeting mention on this blog is sure to bring. Three entries arrived in close proximity to one another. I must examine them all before declaring a winner and giving credit to all three for their efforts. Thanks to everyone who has taken time away from actual productive work to be of help to the readership of "How Appealing." I will describe all three entries, and the links they provide, before this day is over. Posted at 16:52 by Howard Bashman Republican National Committee and Haley Barbour get to keep their million dollars: Today the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous three-judge panel decision that begins: After publishing an offer to pay one million dollars to the first person who could demonstrate that a statement about Republican plans for Medicare spending was false, the Republican National Committee (RNC) denied all claims for the prize. Two of those claims are now before this court. The RNC prevailed in the district court on its motion for summary judgment, and we affirm.The offer in question consisted of, among other things, the following assertion: Heard the one about Republicans 'cutting' Medicare? The fact is Republicans are increasing Medicare spending by more than half. I'm Haley Barbour, and I'm so sure of that fact I'm willing to give you this check for a million dollars if you can prove me wrong.Today's ruling allows Barbour and the RNC to keep their million dollars (or at least that part of it which legal fees did not consume). You can access the complete opinion here. Posted at 16:15 by Howard Bashman An update on those U.S. Supreme Court skullcaps: The other day, I posted an email from a reader nominating the U.S. Supreme Court's traditional Presidential Inauguration headgear as an entry in my odd judicial fashion contest. Today I received a very helpful and informative email from law.com U.S. Supreme Court correspondent Tony Mauro forwarding the text of his article about these caps published in The Legal Times on January 27, 1997, following President Clinton's second inauguration ceremony. Here are some excerpts: Before and after the ceremony, according to eyewitnesses, the justices were unusually animated -- like schoolchildren let out to play, one observer said. Justice Clarence Thomas was meeting and greeting everyone in sight, Justice Stephen Breyer was singing along with "This Land Is Your Land," and Justice Antonin Scalia was depicted in a Washington Times photo waving to his mother.Thanks so very much, Tony, for sending this along! Tony's email also noted that his Legal Times article "was accompanied by photos both current and historical showing the headgear worn over the years, but they are not available online, I regret to say." The opportunity thus remains open for any of this blog's readers to be the first to find such a photo online and email the link to me. Posted at 14:50 by Howard Bashman Next they'll bring a RICO action to put bubble-gum back in the pack: Trading cards remain big business. Today the U.S. Court of Appeals for the Ninth Circuit decided an appeal in a class action lawsuit brought by trading card purchasers against the manufacturers and distributors of trading cards and the licensors of the images shown on the cards. The opinion explains: These are consolidated appeals from the dismissals of eight virtually identical actions brought by sports and entertainment trading card purchasers. The defendants-appellees are manufacturers and distributors of trading cards and licensors of the intellectual property depicted on these cards. In each of these actions, the purchasers alleged that the random inclusion of limited edition cards in packages of otherwise randomly assorted sports and entertainment trading cards constituted unlawful gambling in violation of RICO.In concluding its opinion, the Ninth Circuit explained: We agree with those courts, with the district court, and with all other courts that have considered this issue. Purchasers of trading cards do not suffer an injury cognizable under RICO when they do not receive an insert card. At the time the plaintiffs purchased the package of cards, which is the time the value of the package should be determined, they received value -- eight or ten cards, one of which might be an insert card -- for what they paid as a purchase price. Their disappointment upon not finding an insert card in the package is not an injury to property. They, therefore, lack standing to sue under RICO.The putative class member in my family is currently visiting the zoo with his mother and thus is unavailable for comment. Posted at 14:16 by Howard Bashman Florida sperm donor loses appeal seeking to enforce visitation rights: The Associated Press provides this report. The article makes clear this was not an anonymous donation case; rather, the sperm donor had a contract with the mother, and the contract provided for visitation rights. Update: Courtesy of FindLaw, you can access here the Florida appellate court's ruling. Posted at 10:53 by Howard Bashman A Modest Proposal for dividing the Ninth Circuit: My good man Stuart Buck has drawn my attention to an unusual suggestion for splitting the Ninth Circuit that might have made Jonathan Swift envious. Disclaimer: When I say that I favor dividing the Ninth Circuit, this proposal isn't what I have in mind. Posted at 09:29 by Howard Bashman Big time: I'm on the verge of being able to announce some good news -- that the op-ed piece I wrote for a major media outlet will be published soon. So, stay tuned for more details, including (of course) where and when it will appear. Does this prove the truth of Newsweek correspondent Steven Levy's observation in an online video interview (click here and scroll down to just below mid-page) that mainstream media outlets will co-opt those bloggers capable of developing an audience? Far too soon to tell, because it's still quite a long road between here and there. Posted at 09:12 by Howard Bashman In Tuesday's newspapers: Both The New York Times (article here) and The Washington Post (article here) confirm that no serious or lasting harm appears to have occurred when a book on Islam was discussed yesterday at an orientation session for new students at the University of North Carolina at Chapel Hill. In other news, The Washington Post is reporting that the federal government has asked the trial court presiding over the case of alleged enemy combatant and so-called second American Taliban Yaser Esam Hamdi for the right to appeal from an order requiring the government to provide more factual justification for his detention. Update: Courtesy of FindLaw, you can access here the government's motion, filed in the trial court, seeking permission to take an interlocutory appeal. Posted at 00:36 by Howard Bashman Monday, August 19, 2002
Louisiana Supreme Court removes trial judge from the judiciary: The Associated Press is reporting tonight that the Supreme Court of Louisiana has removed a trial judge from that State's judiciary "because her office lost court transcripts or turned them in late or inaccurately, leading to the reversal of 11 convictions." You can access the Louisiana Supreme Court's lead opinion here, and two concurring opinions here and here. You can access here an appendix to the high court's ruling.
Will TalkLeft condemn today's action by Louisiana's Supreme Court, because it removed from office a trial court judge whose conduct caused convicted criminals to obtain their freedom? Only time will tell. Update: TalkLeft has risen to the challenge and -- lest that site disappoint anyone who has come to depend on its consistency of thought -- concludes that the trial judge was treated unfairly. It's great that the Internet has spawned a strong voice for the rights of those accused and/or convicted of crime; why, after all, should victims of crime monopolize our sympathies? My one and only piece of advice to TalkLeft's author -- she should abandon her use of the Royal "we," which I find to be a distracting affectation. Second Update: Ernie the Attorney, who practices law in New Orleans, writes on Tuesday morning: "there is no question, in my mind, that the Supreme Court did the right thing." Even more recently, Ernie has written a lengthy yet thoughtful response to TalkLeft's commentary on this matter. Ernie's response contains insights that probably wouldn't otherwise readily be available to someone not based in Louisiana. Posted at 23:13 by Howard Bashman ABA appoints Philadelphia lawyer to head its Commission on the 21st Century Judiciary: Go get 'em, Ned. Posted at 23:05 by Howard Bashman The Seventh Circuit again reminds advocates to include a proper jurisdictional statement in diversity of citizenship appeals: The U.S. Court of Appeals for the Seventh Circuit today issued a unanimous opinion written by Circuit Judge Richard A. Posner, on behalf of a three-judge panel, the second paragraph of which stated: A jurisdictional issue managed to elude notice by the district judge and -- despite the stakes in the case and the sophistication of counsel -- all four parties (well, three really, so far as legal advice is concerned, because May and the plan have the same counsel). The jurisdictional statement in the appellants' opening brief properly alleges the citizenship of the corporate plaintiff and of the defendants, but with regard to the pension plan states only that it "is a defined benefit plan with its principal place of business in Missouri." The jurisdictional statements in the appellees' briefs state incorrectly that the appellants' jurisdictional statement is complete and correct. It seems that we shall have to keep repeating until we are blue in the face that whenever a party to a diversity suit is neither a business corporation nor a human being, the district judge and the lawyers for the parties must do careful legal research to determine the citizenship of the party rather than content themselves with making a wild stab in the dark, as the parties did in this case when they chose the principal place of business to be the state of citizenship of a pension plan, a choice for which there is no basis in law. While we are about chastising the parties for their insouciance regarding the existence of federal jurisdiction, we note our displeasure at the conduct of the appellants' counsel, Covington & Burling, in having without our authorization appended to its response to our jurisdictional query what amounts to a second reply brief, purporting to correct a factual error in its previous briefs; and in having, in its opening brief, used ellipses in quotations to create a misleading impression of the meaning of the quoted passages. These tactics are especially unworthy of so distinguished a law firm.Some lawyers don't like to practice in a court where the judges demand actual compliance with the governing rules; me, I prefer it. Posted at 22:56 by Howard Bashman Federal trial court certifies chaplains' class action against the Navy: Judge Ricardo M. Urbina of the U.S. District Court for the District of Columbia today certified a class action against the United States Navy in which the plaintiffs allege "a pervasive pattern of religious preferences favoring liturgical Christian chaplains over non-liturgical Christian chaplains." As the first paragraph of the court's opinion explains: This case comes before the court on the plaintiffs' motion for class certification. The plaintiffs, current and former Navy chaplains, bring this suit alleging that the Navy's policies and practices favor one religion over another in violation of the First Amendment's Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment's Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects. For the reasons that follow, the court grants the plaintiffs' motion for class certification. [Footnote omitted.]You can access the trial court's entire opinion at this link. Posted at 19:21 by Howard Bashman A look at some free speech cases on the U.S. Supreme Court's certiorari docket: The Associated Press this afternoon provides this preview of some First Amendment free speech cases that the U.S. Supreme Court likely will decide whether to review on the merits this fall. First on The AP's list -- a case that challenges a Massachusetts law forbidding target practice on human images at gun clubs. According to the article, gun enthusiasts in Massachusetts are demanding the right to shoot at images of Saddam Hussein and Osama bin Laden. You can access the First Circuit's ruling upholding the law at this link. Posted at 16:32 by Howard Bashman Comparing the federal judiciary to OPEC when it comes to law clerk hiring: Today's edition of The Wall Street Journal contains an op-ed written by Chief District Judge James M. Rosenbaum of the U.S. District Court for the District of Minnesota that is severely critical of the federal judiciary's clerkship hiring plan. He calls the current plan "a restraint of trade," compares it to OPEC and DeBeers, and suggests that the judiciary try the free market instead. He also predicts that the current plan will fail just as all previous efforts to regulate judicial law clerk hiring have. One tiny bit of free market irony -- the op-ed is only available in the Journal's paid content section, so I can't provide you with a link directly to the piece right now. Posted at 13:51 by Howard Bashman Fourth Circuit refuses to stop Quran discussions at University of North Carolina at Chapel Hill: The Associated Press offers this report. You can access additional information from the University's Web site at this link. Posted at 11:15 by Howard Bashman Ohio appeals trial court ruling that found death penalty prosecution too expensive: The Associated Press offers this report. Adam Liptak, in yesterday's New York Times, provided the background of this dispute. Posted at 09:55 by Howard Bashman Proudly agnostic: InstaPundit asks for my views on jury nullification. I'm proudly agnostic. I can think of both proper and improper uses of jury nullification, and Professor Glenn Harlan Reynolds's very well written book review on the topic contains examples of both. I'm certainly not calling for an end to jury nullification, if that were even possible. For those who aren't especially familiar with jury nullification, the term refers to the power that a jury possesses in a criminal trial to find the defendant not guilty even if the facts and the applicable law require a guilty verdict. In essence, twelve citizens whose main qualification is that they haven't found a way to evade jury service (note: I'm personally a big fan of jury service and don't believe that it should be evaded, but I may be in the minority of the general public on that score) are able to override the criminal law currently in effect to find a defendant not guilty even when he or she is guilty. While I don't oppose the existence of jury nullification, I do question the wisdom of explaining more clearly to juries the availability of the option. If I may generalize greatly, currently criminal juries are instructed by the trial judge at the close of the evidence that the court has the final word on what the law means and that the jurors are not to question the wisdom of the law. Then the jurors are instructed that if they find beyond a reasonable doubt that the defendant did x, y and z, they should (not must) vote to convict. In his book review, Professor Reynolds suggests that he would favor explaining more clearly to jurors the option of nullification, but he doesn't say how he would phrase such instructions. I have two main concerns. First, instructions that tell the jury it has the final say on what the law should be -- which is one way a jury could understand being told "you need not convict even if the evidence proves the defendant guilty beyond a reasonable doubt" -- could be used by the jury to rewrite the law in ways that favor the prosecution. In other words, telling the jury "the law is what you say it is" doesn't necessarily always help the defendant. Second, if the jury is to be told expressly of the option of nullification, fairness would dictate that a criminal defendant be allowed to introduce evidence concerning why generally applicable criminal laws shouldn't be applied to his or her conduct. While such "mitigating circumstances" evidence is now a common feature (see, it's not a bug!) of the penalty phase in death penalty cases, making such evidence relevant to the guilt phase of all criminal trials would be something to behold. For these reasons, when it comes to jury nullification, I favor leaving things as they are. Update: Since the time of my posting, above, Law Professor Eugene Volokh, over on his blog, filed a post that raises many of the same (and some additional) concerns about jury nullification. (How is Eugene's post, which clocked in at 7:58 a.m. later than my post, which clocked in at 9:20 a.m.? The Volokh Conspiracy is on Pacific Daylight Time, while my blog is on Eastern Daylight Time.) Again, neither I nor Eugene calls for an end to jury nullification; rather, I (and apparently Eugene, too) believe that the current state of things is preferable to one in which jury nullification is expressly made an option for the jury to consider. Posted at 09:20 by Howard Bashman Mini Cooper: To see the adorable new Mini Cooper, click here or here (and scroll down a little). With respect to the latter, I hope the little Mets fan doesn't join my rabid Mets fan friend down in Atlanta in hoping for a players' strike based on the horrible performance of the Mets this season. A strike would greatly disappoint this Philadelphia-based Atlanta Braves fan and his seven-year-old son, who has recently become quite a fan, and player, of baseball. Posted at 09:04 by Howard Bashman Sunday, August 18, 2002
Announcing "How Appealing for the PDA": A few days ago, a reader currently clerking for a U.S. Supreme Court Justice wrote to ask if I would consider making it more convenient to download "How Appealing" to one's PDA. Drum roll, please . . . . I'm pleased to announce the creation of a companion Web log with the catchy title of "How Appealing for the PDA." You can access it online at http://pda-appellateblog.blogspot.com.
The companion blog will be updated late each night to contain the posts from that day and the day before. "How Appealing for the PDA" will only contain the text of my posts, but none of the links and no archives of its own. When the companion blog is updated, posts there that are older than from the day before will be deleted. Here, on my original site, all posts, and the complete archives, will remain available (Blogger and Blog*Spot willing!). Lastly, if you think this blog is confusing and borderline useless now, believe me it's only worse without the links. So, don't visit "How Appealing for the PDA" unless your purpose is to download the most recent text of this blog to a PDA. Posted at 23:37 by Howard Bashman An entry received for the judicial fashion competition: While I'm on the subject of reader mail, a California-based appellate attorney whom I greatly admire sent along the following missive this past Friday: Loved your post today. If you indeed have critics (the suspension of disbelief that requires is well beyond my current capacities), I'll be happy to supply an unlimited quantity of Orange County water!I know precisely what headgear this email refers to -- the traditional U.S. Supreme Court cap, but I too have been unable to find any photos on the Web. Anyone willing and able to lend a hand? Posted at 23:02 by Howard Bashman "How Appealing" answers its reader mail: The following email arrived yesterday afternoon: The more I read blogs (and I have only just started, being referred to this blog by the greedy clerks board), the more it appears that 75% of what is posted is actually useful information and opinions, while the remaining posts are dedicated to plugging other blogs, pointing out where your blog has been plugged and returning the favor, pointing out where someone returned the favor and likewise returning that favor, and so on.Well, Ted, here is my response: If you find 75% of what's discussed on my blog to be useful, you're probably way ahead of most people. The only person guaranteed to understand 100% of my blog is me, and even that might be pushing it. (For the overly literal reader, might I actually be saying I don't understand 100% of what's on my blog? Looks like it. Am I trying to be funny? Maybe.) |