Begging The Question

Friday, February 20, 2004

Save Ferris
If you're missing your BTQ fix, here's the deal. I am having some work done on my car today, so I'm in and out. And I tried to buy a new computer the other day, but the bank flagged my card, and I've been on the phone half the day trying to straighten that out.

As for Fitz, he called in sick...as in sick and tired of going in to work every day. The secret is clammy hands, but he's already done this nine times this year. Just kidding, of course. He's the conscientious one, whereas I'm the one willing to call in at the drop of a hat. "Hello, Boss? I dropped my hat...I need to take the day off."

As always, we appreciate you checking back with us, and we'll have some new stuff up sooner or later.

UPDATE: The glass people who were coming to fix my broken car window told me they would show up "between 1:00 and 5:00," which is bad enough. Actual time he got here: 5:47. Nah, I wasn't pissed about that at all.



Thursday, February 19, 2004

"I Can Get Open!"
I heard yesterday on NPR's All Things Considered that this weekend ESPN Classic will air the 1954 Indiana boys' high school basketball championship game between Milan High and Muncie Central. This was the game that inspired the movie Hoosiers, one of the finest sports movies of all time. In addition to the game, ESPN will talk to one of Munice's stars and Milan legend Bobby Plump, the inspiration for the movie's Jimmy Chitwood. I'm curious to hear what they have to say about the similarities between the movie and the real thing. Two differences I know of already: Milan did not come out of nowehere to win the title -- it made the semis the year before. And in the real game, Milan (pronounced MY-lun, not like the Italian city) held the ball for long stretches. I haven't seen many games with the stall on. I have always found it to be a fascinating, tension-building strategy that rewards heady play. Naturally, short-attention-span dunk-fanatics hate it. And after the implementation of the shot clock, you just can't see it anymore in colleges -- no more "Four Corners" ala Dean Smith. But note that two of the greatest upsets in the NCAA championship game relied, to some degree, on stall ball. In 1983, North Carolina State held the ball for long portions of the game, including when it held for the last shot to beat mighty Houston. And in 1985, Villanova upset Georgetown despite only taking 28 shots in the game, a Final Four-record low (luckily for them, they made 22, a record 77%). And apparently, Milan relied on similar techniques to best the larger, more athletic Muncie team. So, before you change the channel in frustration as the clock ticks away, remember that holding the ball allows for some funky results and is underdog-friendly. And who doesn't love the underdog?!

(This post's title taken from a movie ESPN Classic will also air this weekend, The Best of Times, another good one.)





It's Not A Tumor
Did you ever forget how to sign your name? Lately I've been having trouble. Maybe it's because I'm rushing it, I don't know. But it kind of looks like there's a letter in there that shouldn't be. It's as if I was signing "Milblarge." (hmm..maybe "Milblarge" is more appropriate...) There's an l-like spike in the middle of my name that doesn't belong. I'm not sure what to do about this, other than slow down and think about every letter, but (a) when I do that, it looks even less like my signature, and (b) who wants to think about every letter when they sign their dang name? I guess I could just turn it into an illegible scrawl: "Milnnnnnn." But the whole point of signing my name is to ensure that people know I signed it.

Anyway, this has just been bothering me lately. But it's also more evidence that "handwriting analysis" is full of crap.





Matchmaker, Matchmaker, Make Me A Match
Here's the latest in my ongoing journey with Match.com. I checked my email last night, and lo and behold someone had "winked" me. Needless to say, I was intially excited. And when I clicked on the link, I saw that she was decent-looking -- at least not repulsive. I figured it was worth a look at her profile, whereupon I discovered that this woman was from the Philippines. I don't mean she was of Filipino descent; I mean she was living there now!

What, pray tell, would inspire this woman to "wink" at me? I wonder if she is trying to proactively market herself as something of a mail-order-bride. Maybe she is searching for men of a particular profession, or income, or in a certain area. Maybe she is looking for men who look particularly desperate. Or maybe she is systematically going through the thing and winking at every guy, knowing that she'll eventually get a hit.

Maybe her aims aren't so sinister (although I hesitate to use that word if both parties know what the deal is -- what's so wrong about it?). Maybe she is genuinely looking for love like everyone else on there, and something about me caught her eye. But my profile clearly says that I am only looking for women with however many miles of me. Perhaps love is stronger than borders, though, and I should have pulled the trigger on a long-distance relationship, as so many readers urged me in an earlier episode. Of course, perhaps even for them, the Philippines is too far away to be worth it. And besides, yesterday's winker had several disqualifying features, so it's moot anyway.

Lastly, I briefly considered the possibility that this might be a spam analogue. In other words, a computer system searches and winks for the user. I suppose that's possible, but I haven't heard of such a thing here, although it might exist in the Philippines. But most spam scams are designed to make money, and I can't figure out a business model here. If anyone has any other suggestions, I'm curious. Anyway, for now, be still my beating heart.





Day of Rememberance
Professor Eric Muller over at Is That Legal? reminds us that today is the anniversary of FDR's signing of Executive Order 9066 which gave the military the authority to evict from the West Coast Japanese aliens and Americans of Japanese descent. Truly one of the most shameful moments in the last 100 years of our nation's history.

Congressman Mike Honda (D - California) is working hard to have Congress designate February 19 as a national Day of Remembrance. I join Prof. Muller is urging you to drop him a line and let him know you support the effort. (links via Is That Legal?)



Wednesday, February 18, 2004

Where the rubber meets the road
Big surprise. H-bomb Dean's failed attempt to win the Democratic presidential nomination essentially ended today. Well, it ended a long time ago. In fact, it never really had much of a chance at all. I am not Monday-morning quarterbacking this one (or Wednesday-afternoon quarterbacking as it were). I was confident that Dean would fail from almost the moment his campaign began. Why so smug, Fitz-Hume? Well, because I know a little bit about the young, hip, tech-savy college crowd that created the buzz and the bubble of the Dean campaign. And I am here to tell you something: these kids are lazy. L-A-Z-Y. I mean it. The 18 to 25-year old crowd formed the bulk of Dean's internet-driven support. But guess what? Those kids don't vote. You cannot get those kids to the polls. They can barely find it in themselves to attend class three days a week. You think they are going to bother to register for absentee ballots, or drive home to vote, or register and vote in their college towns? Ha! In my school days you could not even get kids to vote for student body elections. Elections held in the hallway outside the student lounge! Too far to walk. Too much effort. Surfing the internet and chatting on the Dean blog is one thing. But actually having to expend energy to travel to a polling place? Forget about it. With so much of his support coming from this block of lazy non-voters it was no surprise to me that H-bomb fizzled. I am only surprised that it did not happen sooner. Rock the Vote? I don't think so.





Understatement of the century in a story about the overstatement of the century
From the AP (via CNN):
The White House backed away Wednesday from its own prediction that the economy will add 2.6 million new jobs before the end of this year, saying the forecast was the work of number-crunchers and that President Bush was not a statistician.

(emphasis added). That pie-in-the-sky number is something only a non-statistician could come up with. Maybe they could predict 50 bazillion jobs by the election! 100 gazillion jobs! 2.6 million new jobs is just as big a joke. It's like Dr. Evil asking JFK (played by Tim Robbins) for $100 billion in 1969. It's utter nonsense. Oh, but since the President is "not a statistician" then a little fuzzy math is okay. Arrghh. Why are they trying to make me vote for Edwards? Shouldn't Karl Rove be a little concerned when a gun-toting, flag-waving, church-going Texas boy has reservations about voting for the President? Doesn't he want me to vote for Bush? Does he think that this kind of wild prediction and golly-gee backtracking is the way to persuade me?







How John Boy Should Go Negative
In my last post, I asked for no "one hand clapping" jokes. See what I did there? I was able to scoop the zinger that everyone wanted to lob at me (is a zinger still zinging if it's lobbed? -- ed.), and make the joke myself while simultaneously acting as if I was really pooh-poohing such sophomoric humor.**

John Edwards should do the same thing and go negative on John Kerry. In a two-man race, Edwards has to show that he is the most electable candidate -- because he's already the one most primary voters agree with. And given the fawning media coverage Edwards gets, the press will go along with this two-step.

Here's an example (imaging hearing this from the Great Elocutor): "Ladies and gentlemen, I'm not saying that John Kerry is a flip-flopping weasel. It's those nasty Republicans. And I'm not the one saying he'd try to take both sides in an argument over whether the sky is blue. And it's certainly not me who's going around calling John Kerry a gun-confiscatin', Saddam-lovin', out of touch blueblood who's going to come down here and turn your bowling team into a civil union.

[Now Edwards is leaning in close and speaking in an emotional whisper.] "But the Republicans are saying those things. John Kerry says we should vote for him because he's the most electable candidate. And believe me...if he were, even I would vote for him. But friends, he's not. And it's a shame that he's not because of this awful stuff the Republicans are saying. But we have to face facts. [Edwards's voice rises as he hits his stride.] The fact is that there are two Americas. There's one America for people who eat ketchup, and there's one America for people who eat catsup! The Republicans are saying that John Kerry only speaks for the ketchup America. I say to you, my fellow citizens, that we need a candidate who speaks for catsup America too!!"

Or something like that. The point is that because Kerry's whole platform is "I'm electable," Edwards can say, "But they're saying x, y, and z about you, which mean's you're not." That way, he doesn't have to dirty his hands with it, but still lands the punch. The press will go right along (a) because they love Edwards, and (b) because they do it too: "Is it ethical for Matt Drudge to call John Kerry an adulterer? We'll debate the ethics of exposing adulterers for the next six hours, here on MSFXCNABCBS."

**Completely unrelated tidbit: My favorite story about "sophomoric humor" is from John Parker, author of the cult classic Once A Runner. He was rejected by many publishers, including one who told him that his characters' humor was "sophomoric." Parker replied that many of his characters were, in fact, sophomores. Good book, by the way.





Random Thoughts
1. Easterbrook on poverty. Hear, hear. Maybe the McDonald's widow should have given $200 million to eradicate hunger instead of giving it to NPR. (To be fair, she did give a ton of money to the Salvation Army, too.)

2. Good column from Will Saletan on Slate about independents and Republicans voting for Edwards in the primaries. Kerry will have to face the music that if he lives by "electability," he will die by it when people realize he isn't electable.

3. A really cute poem version of Marbury v. Madison.

4. I'm not the first to ask this, but it's worth asking again: Would the reaction be the same if the Mayor of San Francisco were handing out gun licenses instead of marriage licenses? (I'll say no, but I do think it would have been easier to get an injunction in such a case. I should also state the obvious point that the groups on opposite sides of those issues don't line up exactly in a perfect overlap.)

5. A Zen koan of sorts in response to Fitz's post below. Can a man be a good lover if he doesn't have a girlfriend? Is it something he is capable of being in a vacuum, as it were, even if no one is a beneficiary? Or does it depend on someone else knowing it -- even validating it? Is it something he is able to define for himself? Can one know one is a good lover even if no one is getting that good loving? Is that the same as asking if one can know he would be a good lover if given the chance, or are those different questions? And what about this: If someone thinks he is a good lover, but his lover disagrees, who is right -- who gets to decide it? (Two things. Please, no jokes about "one hand clapping." Also, when I say that this post is "in response" to Fitz's, I don't mean to imply anything about his status as a love machine. Or mine, for that matter. I simply meant that it got me thinking.)





Additions to the blogroll
I have recently added some new links to my blogroll (scroll down the right column) and wanted to mention those sites in a post, too. I would encourage you to check out the following:

The Right Coast

Andrew Sullivan

Begging to Differ - now with 100% more Balasubramani!

Blue Ridge Blog - more of a photo journal than a blog, but worth checking out all the same

Boots & Sabers - Gig 'em Aggies!

The Hobbesian Conservative - self explanatory, right?

Legal Fiction - Southern, non-Federalist (as opposed to these guys)

Manifest Border - an immigration law blog

TauntingHappyFunBall - he owns the StarWars Trivial Pursuit game so he gets on the blogroll

Trivial Pursuits - this guy likes hand-to-hand combat and Japan. He also has a picture of Bill Lumbergh on his page.



Tuesday, February 17, 2004

Just Like Starting Over
There are always several things going on in the world I'd like to blog about. It's just a function of my laziness at home and my need to produce at work that I can't get to it all as soon as I'd like. So, I'm left with the problem of whether to blog about something that fired me up a week ago, or drop it altogether. I have decided to start from scratch. If I keep a list going of all the things I should blog about, I'll spend more time compiling the list than I ever would blogging. And if I haven't gotten sufficiently motivated to write about something yet, chances are I won't ever -- or whatever I do write will be pretty bad. So, I'm using this post the clear the decks of some things, to mention a few things in passing that I will probably never spend more time on, and then I'm going to go from here.

If you read certain blogs, you probably knew about the end of En Banc before some of its members did. I'm sad to see it go. Even if it wasn't an "hourly" read anymore, I still checked in a couple times a day. Anyway, with its demise, I now have the impetus for a broader blogroll shakeup, which is coming soon.

Via Ken at Crim Law, I see this story from Iowa about ways to fight traffic tickets. It contains an all-time classic line: "Experts say it's unwise to make a false statement while under oath to avoid a speeding conviction."

Note: this statement does not constitute legal advice nor does it contemplate the creation of an attorney-client relationship. And, oh yes...duh.

Yesterday Fitz and I were talking (read: bitching) about SUVs. Greg Easterbrook agrees. Every single "legitimate" reason people give for buying an SUV is better served by another vehicle (usually a minivan). Hauling kids, safety to others in an accident, enviro concerns (gas mileage and pollution, or input and output) -- there's no good reason to choose an SUV over something else. The only decent argument SUV drivers made was that the SUV is safer in an accident -- safer for them! I won't argue the virtue of selfishness, but at least it appeared that drivers exclusively concerned about the safety of themselves (and their passengers), to the detriment of others, could say an SUV was the best choice. Easterbrook notes new studies that show this isn't true -- SUVs are probably safer in any given accident vs. a car, but SUVs are so much more likely to be in an accident in the first place that there are no net benefits. Overall, SUVs are more dangerous -- even to the occupants! Beautiful! I can't wait to hear my SUV (and heavy pickup) driving friends try to justify it now.

(Note: I used the scare quotes for "legitimate" above because I acknowledge that SUV drivers might have other reasons for their purchases. Perhaps they like how those boxes look. There's no accounting for taste, so I won't judge for that. However, I doubt many of them even considered a car or van as boxy as most SUVs -- which to me means they really like the bigness of an SUV. Other reasons for buying one -- aside from bigness -- surely include compensation for other shortcomings in life, or a need or desire to menace others. It would be hard to argue with these folks about their choice. Anyway, I have never heard anyone justify their purchase with these reasons, unsurprisingly, which leaves only the obviously-refuted reasons above, like safety. I can understand saying, "I want to buy a safe vehicle, and so I will get an SUV" if you don't know how unsafe they are. But if you do know, and buy one anyway, and state safety as your reason, you're just self-delusional or flat-out lying.)

(Second note: I could also understand saying, "I want to buy a safe vehicle, but it's not absolutely imperative that I buy the *most* safe vehicle." Fair enough. But (a) why buy one that is in fact unsafe? (b) what caused the compromise? price? SUVs are more expensive than other cars. need room for kid seats? see the minivans. need for off-roading? well, you don't really do that much, and there are other four-wheel drive cars available. Anyway, I reiterate: There are no good reasons for buying an SUV.)

Via Guest-Crescateer (Guestcateer?) Ben I find this post about the new class action rules. Very interesting stuff. I did a semester-long independent study in law school about the class action rules. I don't even have enough time to blog, but I really wish I had time to write something about these rules. If you're interested in procedure generally, and the class action specifically, this post is worth reading. My independent study paper was about the provision that would allow class members in certain types of classes to opt out at the settlement stage as well the certification stage. I'll have to dig it out to remember what my point was.

Larry Solum points out an online collection of the works of Thomas Hobbes. I have no great desire to explore there, but I point it out to say that if Eldred had come out the other way, maybe we would eventually see other pages like this, once works enter thepublic domain. Oh well...

Finally, I really was meaning to discuss this fuss about how liberal the professors are at Duke University. The deal is that the Duke Conservative Union looked up the party registrations of the professors in several humanities departments. Almost all were Democrats. Several Duke professors have responded, but the chair of the Philosophy Department has sounded particularly bad, essentially saying that Duke didn't hire conservatives because conservatives are dummies. I have "outed" myself as a Dukie to address this, but now the world has moved on. The Southern Appeal gang has been all over this. Here is the latest post, I think. Hit ctrl+F and search for "Duke" to find all you could ever want.

I have decided that it wouldn't do a lot of good for me to try to "defend" this. To begin with, as a liberal, it would be hard for me to argue that I didn't drink the Kool-Aid, or that the professors didn't indoctrinate the students. After all, I loved Duke. It was much better than "Cats." I'm going to donate again and again. (If you didn't get that joke, never mind.) Furthermore, my evidence would be completely anecdotal -- which isn't to say that it's illegitimate; rather that it has its limitations.

For what it's worth, I didn't get the sense that conservatives cowed in fear of expressing politically diverse viewpoints. Most of my friends at Duke were conservative -- or at least a good deal more conservative than I am. Two of my favorite stories: A group of students, tired of the lefties protesting everything under the sun, decided to hold an Anti-Communist rally. They handed out literature, engaged some barefoot peaceniks in debate, had a guy in a Reagan mask signing autographs, etc. Fun for all. Also, in an intro political science course (I wasn't there, this is second-hand), a student complained that immigrants were still asked if they were then or had ever been a member of the Communist Party. My friend and our loyal reader "Sebastian" rather loudly said, "God Bless America" and he and a cohort started humming "The Battle Hymn of the Republic." They suffered no repercussions of which I am aware.

I think most Duke students recognized that "political correctness" was the order of the day at the official level, and they either chose to buy into the sense of victimhood that a fringe element cultivated, or they didn't and had a happy time in the Gothic Wonderland. My sense is that most conservatives greeted the lefty students and profs with an air of resignation at these lost causes. Perhaps I ran in the wrong circles, but I never had any trouble finding the conservative viewpoint. The conservative Duke Review was widely read. Fraternities -- widely seen as a bastion of the old-boy network -- were well-populated. And this wasn't entirely an example of like-minded rebels digging in against the estrablishment (in the form of a "crusty Dean," of course). Fraternities at Duke were housed on campus. While this was surely done in part to maintain some control over them, independents and non-fraternal organizations (which tended to be liberal communes, essentially) would always complain about the fraternities' privileged status in housing and the fact that social life was frat-dominated. (Note: I was not a member of a fraternity, but I lived among them and roomed with members.) Duke alum Liddy Dole is a popular figure on campus. My graduation speaker was George H.W. Bush. And of course, the most visible, popular, and highly-paid person on campus, men's basketball coach Mike Krzyzewski, is a noted conservative.

I know it's not the little incidents of daily life that the DCU was complaining about. But it's not as if Duke conservatives are hiding their lights under a bushel basket. I heard plenty of students challenege suposedly liberal professors in class. I had two of the professors quoted in the original article responding to the DCU (the one where the Philosophy Chair endowed his foot into his mouth). When one commented on the military-industrial complex under Eisenhower by trotting out Defense Secretary (and former GM CEO) Charles Wilson's line about what is good for General Motors is good for the country, I pointed out that Wilson was widely misquoted -- he actually said the reverse, which is indubitably true, even if the line he is accredited with isn't (and I think it is). I was a dumb freshman, so I was obnoxious enough to raise my hand in a lecture hall full of students and correct the professor, but I got a fine grade in there and the prof ended up writing letters of recommendation for me. In a seminar for that professor my senior year, I did a large paper on successor presidents (Van Buren, Taft, Bush the First) and why they cannot surpass the shadow of the predecessor (Jackson, TR, Reagan). For such a supposedly liberal profesor, he loved my paper that practically gushed over TR and Reagan. (In fairness, he might have perceived me as painting Clinton in the same way as I did those three revolutionary presidents, but I don't think that was my point. At most, I argued that Gore would have a very tough time coming out of Clinton's shadow.)

I'm not going to go on anymore. I've offered Sebastian a chance to respond as he wishes, but I'm through discussing it. I'm sure conservatives at Duke get irked by this, and there are probably many students who do get effectively indoctrinated, and that's a shame. But I don't think you can prove that argument simply by looking at the voter rolls any more than I can prove it isn't true by dredging up a few stories. I will note as a final matter that when a lot of these profs came to Duke, the face of the Democratic Party in North Carolina was four-term centrist governor Jim Hunt, while the face of the Republican Party was Jesse Helms. I don't know if anyone would change his or her prior affiliation because of that, but Helms is not the kind of guy I would like to line up with. Of course, I went to Duke, so what do I know?

OK, last thing for this post. My window at work overlooks a parking deck across the street (I'm on the 22d floor, and the deck is four or five levels high, so it doesn't mar my view). There is some graffiti on the wall of the elevator shaft that I can see clearly from up above. It reads: " !HARMFUL! Repent " I have no idea why it's there, but it strikes me every time I see it.

Note: This post's title inspired by the John Lennon song.





All About Fitz-Hume: Chapter 2
What I am doing at work: Reading an eleven page brief that does not contain a single citation. Not one. No citations to the record. No citations to the parties' exhibits. No citation to the transcript of the hearing. Not one citation to a case, a regulation, or even the act which gives rise to the claim. To borrow from the Simpsons comic book store owner, "Worst. Brief. Ever." The uselessness of the "brief" is stunning in its audacity and scope - it is little more than a raised middle finger directed at my judge. After reading this thing, I am tempted to press charges against the attorney for stealing half an hour of my life - grand larceny - that I will never be able to regain. (Hmmm, maybe the lovely and talented assistant Commonwealth's attorney in Norfolk could be persuaded to prosecute the case.)

The most difficult part of my job, lately, has been dealing with the daily malpractice I am witness to. There are three major factors that contribute to my frustration. First, administrative law judges do not have personal jurisdiction over the parties, witnesses, or attorneys. Thus, no contempt authority and no meaningful authority to sanction the attorneys by any method short of contempt. To pursue contempt charges requires certifying the issue to the federal district court, which is essentially a waste of time (for everyone involved). Second, in almost all cases before my judge, the claimants' attorneys cannot charge their clients a fee. Successful claimants' attorneys may recover their fees from the opposing party and unsuccessful claimants' attorneys are stuck with nothing. The resulting situation is one in which malpractice claims do not act as a check on bad attorneys. No paying client equals no one to sue you for malpractice (not that the clients cannot sue their attorneys, only that they do not sue). Third, there is no administrative law equivalent to Rule 11. Again, no authority to sanction bad attorneys or their clients.

The only solution I can see is to devote a portion of the decision in the case to chastising the attorney(s) in an effort to shame the attorney(s) into improving their work. This solution certainly allows me to vent my frustration with the attorneys. It guarantees that the attorneys will be embarrassed. But does it solve the problem of malpractice? I tend to doubt it. In fact, by fostering an air of hostility between the bench and bar such measures are more likely to have a negative impact in my opinion.

I would welcome any comments, thoughts, suggestions, etc. from our readers on this issue.


What I am doing at home: Tying blue-wing olive dry flies in preparation for the first fishing trip of the year - which is less than a month away! Oh, and trying to train my dog Dash (beagle / border collie mix) to retrieve.

What I am reading: Thomas McGuane's The Sporting Club

What I am watching: Joe Versus The Volcano - the opening sequence of employees trudging to work (set to the tune of Tennessee Ernie Ford's Sixteen Tons) captures perfectly my impression of big-firm life.

What I am listening to: The Three Pickers: Ricky Skaggs, Doc Watson, Earl Scruggs

What I am thinking about: My as-yet unsuccessful job search and my fifth(!) rejection from the Department of the Interior

What I am not thinking about: the NBA

Factoid: I dropped out of college to spend several months wrangling horses and mules for a big game outfitter in Colorado.





Milbarge, The Autobiography (cont'd)
What I'm Doing at Work: Not today, of course, but yesterday I was working on an Anders case. You may have seen Bashman's post here about a case where counsel filed an Anders brief on behalf of a client names Anders. Even if you don't know what an Anders brief is, you could probably at least figure out that it's kind of like a defendant named Miranda claiming he wasn't read the Miranda warnings.

The basic deal is this. In the '60s, after the Supreme Court held that criminal defendants have a right to counsel on their first appeal of right (Douglas v. California, I think), lawyers were faced with a dilemma: What if the appeal is frivolous? If there's no right to counsel, a lawyer could say that this appeal is a sure-loser and tell the defendant he won't waste his time, have fun in jail. But post-Douglas, these attorneys were obligated to at least file something. At trial, the lawyer can argue reasonable doubt and cross-examine the government's witnesses even if he or she knows the defendant has no chance. But on appeal, the attorney can't argue that the conviction was contrary to law if it wasn't -- the lawyer still has a duty of candor to the tribunal. So what is the recourse for a lawyer here?

The Supreme Court answered in Anders v. California, 386 U.S. 738 (1967). The attorney should state that he or she has reviewed the record and found no meritorious grounds for appeal. And then, the attorney can present any issues -- even facially frivolous issues -- to the court for review, with the understanding that the attorney isn't signing his or her name to meritless arguments. (Normally, of course, arguing something that is totally without merit can cost an attorney all kinds of sanctions.) The court then takes it upon itself to scour the record for anything supporting the appeal. (Another neat tidbit: unlike most other cases, where the client has to speak through counsel, in an Anders cases the defendant-appellants can file a supplemental brief raising any issues they want.)

I find Anders cases interesting on several levels. First of all, until I started this job, I had never heard of the case, despite taking three or four classes in law school where it could have come up. A bigger rant about everything that's wrong with law school will have to wait, but one thing I don't like is that in the case method, every case seems to be incredibly close. I understand the pedagogical value of that, but (a) I think it can lead students to become ultra-Realists, because they see a bunch of 5-4 decisions with very little context for them so they start to think that the answer is whatever the judge wants it to be -- I don't have time to flesh this out more, but I saw it happen; (b) It doesn't make clear to students that so many cases (at least on the lower courts) are pretty easy and decided unanimously -- a subset of the first point, I suppose; and (c) it doesn't show that some cases, like Anders, can be so easy that they create problems for the advocate.

Second, working on an Anders case for the court is, I think, an approximation of being an appellate lawyer. I have to look through the record and attempt to find any grounds that might support an appeal. We're pragmatic about it, though. Every time the lawyer objected at trial doesn't turn into an appeal over the admissibility of certain evidence. Some issues aren't even arguably arguable.

The other thing is that nowadays in the federal system, with so few trials, there's not much to argue in well over 90% of the cases. When the defendant pleads guilty, pretty much the only things to appeal are (a) whether the district court followed the rules in accepting the plea -- ensuring it was knowing and voluntary, and (b) whether the application of the Sentencing Guidelines was correct. And, most U.S. Attorney's offices include waivers of appellate rights in the standard plea agreement, so even decent issues are waived. (Note: a few things aren't covered by the waivers and you can argue it shouldn't be enforced, so it might not eliminate the appeal, but it does streamline it.)

Anyway, Anders is an interesting case that acknowledges how easy most cases are. Most of the ones I've worked on have been fairly routine, but the one I have now at least presents an issue or two worthy of discussion. If you plead guilty and waive your right to appeal, that's about the best you can hope for.

What I'm Doing at Home: Cleaning my apartment, shopping for a computer. Both hassles.

What I'm Reading: Catching up on magazines, as usual. I've finally gotten into 2004 with most of them. In between books right now.

What I'm Watching: I taped Conan O'Brien's appearances in Toronto last week and watched those. I like Conan, and these were some good shows. He created a bit of a fuss in Quebec by making fun of the folks there via recurring puppet character Triumph, the Insult Comic Dog. (Typical joke: "So you're French and Canadian? That means you're obnoxious and dull." "I need a translator because the only French I know is 'I surrender!'") I will note, though, that the Quebecois who talked to the dog seemed to be laughing.

What I'm Listening To: Little of this, little of that. I've had "Eggman" from Paul's Boutique by the Beastie Boys in my head. A little Randy Newman, a little Pretenders. Am I purposely trying to be eclectic? Yeah, a little.

What I'm Thinking About: My move coming up this summer. I've been reading guidebooks and looking at maps and news from there. I'm not sure if I'm just getting cabin fever here or if I'm getting tired of this job after my stupid work issue last week or what. But I'm starting to look forward to my next job (an elbow clerkship, for you late-comers).

What I'm Not Thinking About: I'm trying to get into a state of denial about the Democratic race. Surely they're not dumb enough to nominate Kerry, right? I mean, they wouldn't intentionally do something that ridiculous, would they? Surely not. Serenity now.

Factoid About Me: How about this: I once sat in a football stadium full of people as Billy Graham led the assembled masses in prayer. No, I didn't go to a crusade -- but wouldn't that have changed the way some of you saw me! I was at the first game played in that stadium, and Graham came to "bless" it.

Speaking of prayer and large groups, that reminds me of a story from high school. At my graduation ceremony, one of the student speakers "spontaneously" (i.e., without official approval) asked the crowd to stand and led them in a recitation of the Lord's Prayer. I sat silently, because I thought this was inappropriate in several respects. We were in the basketball arena, and there were a lot of people (my class was about 200). As it happened, my seat was on the end of a row, so half the gym could clearly see me sitting there while they all stood and prayed. (If it wasn't "all," it was darn near all.) My mother proclaimed herself "mortified" at my gesture.



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    Disclaimer

    The views presented here are personal and in no way reflect the view of my employer. In addition, while legal issues are discussed here from time to time, what you read at BTQ is not legal advice. I am a lawyer, but I am not your lawyer. If you need legal advice, then go see another lawyer.

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