Begging The Question

Saturday, February 28, 2004

I Didn't See Any Trenches The Last Time I Was In A Courtroom
Scott at L^3 has a post up discussing this article from (free registration required). The author, Luther Munford, a former Supreme Court clerk, argues that today's Supreme Court Justices are out of touch with the way law is practiced "in the trenches" today. His suggestion is that there should always be at least one litigator on the Court ("a litigator's seat"). Scott deftly addresses the author's contention that litigator-nominees would be more amenable to the Senate Judiciary Committee because there's no paper trail on which to hang the nominee. Scott is correct, I think, in feeling that a lack of judicial experience would be used against the nominee. And besides, to take a couple of recent nominations that spring to mind, it isn't as if Sixth Circuit Judge Jeffrey Sutton wasn't attacked based on his clients when he was a litigator. Also, even though he wasn't able to choose his party (except by running for election), Eleventh Circuit Judge William Pryor was criticized for the arguments he made on Alabama's behalf as Attorney General.

Turning to another flaw in the article, you might be curious what Munford says the Supreme Court isn't in touch with from its lofty perch away from the hub and bub in the streets. One is how technology has made discovery more expensive, and how discovery is now "a central driving force in litigation" (is that redundant?) To make this argument a bit broader, I agree that the Supreme Court seems more trial-focused than pre-trial focused. A great example of this is its criminal procedure cases, as argued (so much better than I could ever manage) by Iowa Law's Stephanos Bibas in "Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas," 110 Yale L.J. 1097 (2001), and, it appears based on the title, in "Plea Bargaining Outside the Shadow of Trial," 117 Harv. L. Rev. (forthcoming June 2004) (there are links for these on Bibas's page, but my wacky computer isn't letting me link to .pdf files).

I am somewhat less in agreement with Munford's other areas of concern. One, he says, is legal ethics broadly speaking (he mentions professionalism and advertising). But Munford undercuts his own argument with a basic error. He writes, "None of the justices currently on the Court has engaged in the internecine skirmishes brought on by vague interpretations of Federal Rule of Civil Procedure 11 as it was amended in 1983." But Rule 11 was amended in 1993 "to remedy problems that have arisen in the interpretation and application of the 1983 revision of the rule," according to the Rules Advisory Committee. Munford may still have valid complaints about trial practice, but it seems odd to raise Rule 11 and not mention the version that has been in operation for more than a decade. Plus, the Supreme Court has a role in the federal rulemaking process yet did not stop the 1993 amendment.

Munford's other complaints center on mass tort litigation and claimants who didn't even know they were injured until a lawyer told them. Even assuming that these are problems, what does Munford propose the Supreme Court do about it? Is he hoping for tort reform enacted by the High Court? I think these complaints are of a piece with his criticisms of legal advertising and diminished professionalism. As I think Scott picks up on, Munford, who works for a firm doing mostly civil defense work, seems to be hostile to John Edwards-style trial lawyers. Oh, and I notice that Munford doesn't mention recent Supreme Court cases like Campbell and Gore that limit punitive damages under the Due Process Clause. If you wanted to make an argument that the Supreme Court was out of touch with, say, how lawyers and juries behaved at trials, these might be good to mention. To be fair to Munford, he did not really address trials, only "litigation," which in modern big firm practice seems to mean anything but getting to trial. But I wonder he would feel about a "litigator's seat" if it were filled by John Edwards (maybe that's why he's being so nice to John Kerry!) or a criminal defense attorney, both of whom would probably also call themselves "litigators."

Scott has an interesting suggestion to alleviate concerns that the Justices might be out of touch: bring back riding circuit. A few retired Justices did this after they left the Court. Justice Tom Clark sat by designation on every circuit after his retirement. Justices Byron White, Lewis Powell, William Brennan, Potter Stewart, Thurgood Marshall, Stanley Reed, and Harold Burton also sat by designation on various circuit courts after their retirements. I take this information from a thorough review of the practice of circuit riding, Joshua Glick, Comment: "On The Road: The Supreme Court and the History of Circuit Riding," 24 Cardozo L. Rev. 1753 (2003). Glick notes that circuit riding by current Justices has now been abolished by statute (fn. 565), and it had only happened a few times since the creation of the circuit courts of appeal in 1891 anyway. Of course, all of the retired Justices are now dead, and besides, this wouldn't help the current Court if it is "out of touch," but it's a neat bit of legal arcana.

Scott says that by riding circuit, the Justices "will get a chance to tangle with a trial court record and see the types of problems currently being addressed in our legal system." I think it's a fun idea, but I don't see it happening, despite the tiny docket (of argued cases at least) the Court is handling today as compared to recent years. See, e.g., Margaret Cordray & Richard Cordray, "The Supreme Court's Plenary Docket," 58 Wash. Lee. L. Rev. 737 (2001). Perhaps for no other reason, none of the Justices would likely relish the chance that they would be reversed on appeal by their own Court. (Aside: I seem to remember hearing that Chief Justice Rehnquist once sat by designation as a trial judge, and was in fact reversed on appeal. This was mentioned during President Clinton's impeachment trial, because it was the only other trial over which Rehnquist presided. I can't find a reference to this case, if it exists, so if anyone has one, please pass it along. After thinking about it, this may have been an administrative hearing while Rehnquist was at the DOJ.) Also, the Glick article has a nice quote attributed to Potter Stewart on sitting as a retired Justice on the court of appeals: "[It is] no fun to play in the minors after a career in the major leagues." I suspect this is even more true of Justices currently playing in the big leagues.

However, I can think of another way we could address this issue: Consider state supreme court justices for appointment to the U.S. Supreme Court. Of course, President Bush probably is already doing that with California Supreme Court Justice Janice Brown, as evidenced by his attempt to get her on the D.C. Circuit. But there's no reason she needs federal court experience to be "qualified" to sit on the Supreme Court. (Not that I would support her nomination, necessarily.) To cite just the ones that leapt to mind (and coincidentally two pairs of Justices where one succeeded the other), Justices Oliver Wendell Holmes, Benjamin Cardozo, William Brennan, and David Souter all came to the Supreme Court after service on a state supreme court. The first three came directly, and Souter came after about five months on the First Circuit following his seven-year career on the New Hampshire Supreme Court.

I suppose one could argue that Brown would gain exposure to the regulatory docket the D.C. Circuit sees so much of, and this would be a nice area of the law for a Supreme Court Justice to know about. But state supreme courts see plenty of federal constitutional law (especially in criminal cases). The Campbell and Gore cases noted above came from state courts, after all. And, even leaving aside the fact that many state systems copy the federal procedural rules, the state courts deal with federal law too, absent pre-emption. Sure, they don't see bankruptcy, antitrust, patent, ERISA, a few others. But it's not like every nominee coming from the federal circuit courts is an expert on these.

Also, to directly address Scott's criteria, state supreme court justices often take cases directly from state trial courts, and thus have lots of experience dealing with trial court records in the first instance. Moreover, they decide all manner of disputes arising from all stages of trial (including discovery), and are probably more connected to the practicing bar than their federal counterparts (if for no other reason than handling bar discipline cases). Also, they decide more cases than the U.S. Supreme Court, and thus they likely see a wider variety of issues in any given year.

To be sure, all state supreme court justices are not created equal. (Roy Moore of Alabama, anyone? The Goodridge four from Massachusetts, anyone?) I think it's obvious that different states would provide better experience for a potential Supreme Court nominee than others. But there are plenty of qualified and capable (and confirmable) state supreme court justices out there. And, I think choosing one for a Supreme Court position would be much easier, more feasible, and a better alternative than Munford's "litigator's seat" or Scott's circuit riding suggestion.

Friday, February 27, 2004

Y'all Come Back Now, Ya Hear?
If you are looking for that dialect quiz, we don't have it. The link we had is no longer working. Sorry. Good luck. We do talk about it and other quizzes below, but we don't have the quiz itself.

To explain to everyone who is still reading:
We've gotten three time our normal daily visits (and a record-high overall), and it's not even 7:00 p.m. yet. The reason is that we are showing up very high on Google searches for a certain quiz dealing with whether the quiz-taker speaks like a person from one region of America or another. I won't say it more explicitly than that, because I'm not trying to Google-bomb, but Wednesday's post at 2:01 p.m. and Tuesday's post at 12:11 pm.m are the reason (scroll down, I'm scared of even linking to them). Sadly, most of these visitors seem to just be looking for the quiz, as most of the visits are shorter than 1 second. Presumably, the visits will be longer if they have to scroll through my last post, but that wasn't why it was so long.

Anyway, it's kind of cool to see the visit numbers climb so fast, and then kind of not-cool to realize is has nothing to do with my hard work. Our most frequent site-referrer is still "unknown," which is probably all the visits from the nice people (like me) who have BTQ tagged as one of their favorites. The next-highest is How Appealing. Balasubramani, the Curmudgeonly Clerk, and Mr. Poon are other big senders (thanks!). The other big hit we get is from searches for "begging the question," which makes sense. But now, more people are finding us by looking for this dang blame quiz than by looking for the blog or even our namesake logical fallacy.

Oh well, I guess a visit is a visit. And maybe some of these people looking for the quiz will stick around. If so, and they're still reading, we appreciate you taking a look, and we hope you enjoy what you see. If not, hope you find what you need elsewhere.

This Opinion Is Unpublished. Do Not Cite It.
Yesterday I mentioned the proposed FRAP amendment allowing citation to unpublished opinions. I thought I wasn't going to write a substantive post on this, but then I started writing a long comment, and since I have the password, and we haven't had anything else up today (sorry), I decided to just toss it out here in the main space. Of course, like a goldfish, I have expanded concomitant with the size of my environs, and written far more than I would have if this had just been a comment. So, go to the cited post, read the comments, and then come back here and read my further comments. Basically, my feelings are that unciteable unpublished opinions are, as Steve the Feddie put it in the comments, a "necessary evil."

Parties cite unpublished cases all the time already, at least in the briefs I see. Our staff attorney's office handles a whoppingly large percentage of all of our circuit's cases. I have never seen or heard of any attorney getting dinged for doing this, but it's probably happened at some point, and is probably worse in other circuits. Mostly what happens is that I tell the judges that the "published" rule is X, but some unpublished cases say factor Y or Z might make a difference; or I say there is no published rule (often because the claim is so crazy it's never been seriously dealt with), and the unpublished cases say whatever. If that happens, I would say that this might be a good vehicle for arguing the case and issuing some more published authority, and the judges are receptive to that.

So, on the one hand, I think it's pretty rare (at least in our circuit) that a case that really moves the law along is only available in an unpublished case and is the elephant in the room no one can mention. They either go ahead and mention it, or it's unpublished for a reason (as in there are some published opinions out there that say the same thing), or the court takes a case and settles it.

On the other hand, I can see how this might fuel a sense that there's a secret justice system. After all, the judges and I are talking about what the court has done in unpublished opinions the parties aren't supposed to cite. If I base my recommendation on the court's long and unbroken practice in unpublished opinions, how can an overworked attorney argue against that if he or she doesn't know those opinions exist? Well, the answer for that attorney in reality is to say that there is no published authority on it, and really push for argument.

So, generally, I think the unpublished opinions ought to be very easy to get for free. But I don't support declaring every opinion precedential (and I understand that the proposed FRAP doesn't either). I guess if I were the Law Czar (tremble before me, Feddie!), I would be okay with citing to an unpublished opinion if there's nothing better and the facts of your case are on all fours with the unpublished case. (My reason for that is that unpublished cases usually are fact-based cases where the legal principles are clear.) The problem with that is that too often that would devolve into a squabble over whether this case is really on all fours or just threes: "Well, in that case the cop said, 'May I search your car?' but in this one the cop said, 'Will you let me search your car?' and that makes all the difference blahblahblah."

In sum, I think the system works well enough as it is. I can understand the principled reasons for supporting the rule, and in a vacuum I think they might sway me. But in the real world, we sometimes have to make do with necessary evils. If it matters, I've read every opinion -- published and unpublished -- issued by my court in the last eighteen months and only a handful of times have I thought a case might have deserved publication. (Note that a party may move for publication, too.)

I couldn't really figure out where to fit this example in, so I'll just put it here at the end. One who doesn't see them a lot might wonder what kinds of cases end up being unpublished. Well, in our circuit, pretty much all of them -- or a high percentage anyway. The cases which are almost certain to be unpublished are procedural dispostions (untimeliness either in the disctrict court or a late notice of appeal, for example), cases where the law is clear and the only issue is the law's application to the facts at hand (more on that later), and cases where the district court got the case right and the opinion here simply adopts that reasoning. All of these cases tell the parties why they lost, and there's really no good reason for anybody else to cite them. Even if the rules are liberalized, they won't -- unless they want to give the impression (by use of long string-cites) that their position is stronger than it is. It is only the rarest case when there really is an intracircuit split of unpublished authority (caveat: in a huge circuit, this might well be different, merely because of volume). Perhaps that's an argument that the proposed rule will be good in the marginal case, and harmless in the majority of cases. But it will force folks like Steve Minor to pore through tons of cases just in case some mega-firm associate happily billing hours stumbles across some unpublished silver bullet. The current scheme at least keeps everyone on the same playing field.

One exception, I think, is habeas cases, but the problem there is statutory. This court cannot review a denial of habeas corpus relief absent the grant of a certificate of appealability, as required by the Antiterrorism and Effective Death Penalty Act (which, of course, applies to all habeas cases, and not just those dealing with terrorism or the death penalty, where the issues are almost always so significant that a COA is granted). In the rull-of-the-mill habeas case, the petitioner can't meet the COA standard, and his appeal is dismissed in a brief form opinion. He probably has no idea why he lost, and the opinion won't tell him. But the reason why is that this court doesn't have jurisdiction to tell him, so there's not much we can do about it.

And the last thing I'll mention is the other type of case that regularly ends up being disposed of in an unpublished opinion, direct appeals. By numbers, more of these are criminal appeals, and I deal with more of them, but this could apply to civil cases as well. Take for example a Fourth Amendment case (evidence not supressed, defendant convicted at trial or pleads guilty conditionally, and then appeals the supression decision). In many of these cases, the validity of the search or seizure is a completely fact-driven question. In lots of those cases, it's not even close whether the search was valid. But even if it wasn't the good-faith exception would save the evidence from the exclusionary rule. So the bottom line for these folks is that the supression motion was properly refused. And many times the opinion will not reach the underlying Fourth Amendment question, and go straight to the good faith question in affirming the conviction. Or take an appeal over an evidentiary issue at trial -- hearsay or a 404(b) claim or somesuch. In the end, whether the objection should have been sustained doesn't matter if the error was harmless. So the opinion will just say that, even if the district court erred, such error was harmless, ergo conviction affirmed.

Now, I agree that, in theory, having a lot more case law out there explaining the countours of the Fourth Amendment or the boundaries of the Federal Rules of Evidence would be a good thing. And I am very sympathetic to concerns that skipping the underlying claims to go straight to the good-faith analysis or the harmless error analysis creates an affirmance bias. But, again, in the real world, if it isn't going to make a difference in this case, there isn't a lot of incentive to go through the nooks and crannies of the underlying claim. And sooner or later, a case will come up raising the claim in a posture where it does make a difference.

That's really all I have to say, and I'm sorry if it's a bit like Nuke LaLoosh's pithcing: all over the place. Big surprise: I don't have a huge fundamental problem with what I do for a living. It wouldn't tear me up if the rule amendment eventually is adopted, but I'm not terribly bothered by the current system.

Thursday, February 26, 2004

Best. Quiz. Ever.
The lovely and talented Mr. Poon is now offering a personality quiz. I think it's funny, but I don't get it. Better luck to you!

Comments Even Will Baude Could Love
Via Steve Minor and Denise Howell, I saw this site from a group called Secret Justice collecting all the comments regarding the proposed amendment to the Federal Rules of Appellate Procedure that would prohibit the courts of appeals from disallowing citation to unpublished opinions. If you're an appellate law junkie, you already know about this, so I won't recount the whole controversy. But I thought the link was worth passing along. It's kind of neat to see lawyers and judges discussing the functioning of the appeals process, and their predictions (be they dire or rosy) of what this proposed rule will bring.

Finally, if you're on the fence about the rule amendment about citing unpublished opinions, consider this: I write a lot of them. Whether that turns you to "pro" or "con" is for you to decide. Just fyi.

Gay Marriage and Contracts
Eugene Volokh had a post up briefly considering whether invalidating Massachusetts gay marriages (such as through a constitutional amendment) would violate the constitutional's contracts clause, which bars impairing the obligations of contracts. He says no, because marriage isn't exactly a contract, in that sense, even though we sometimes use the language of contracts to describe it.

My question, totally ill-formed and not thought out, is what about pre-nuptial agreements? These are regular old contracts, enforceable in any court. The parties can contract for things like property settlement, custody, spousal support, etc. All of these would seem to depend on a valid marriage, and are probably often drafted with the state's default divorce law in mind. And while some of these things can be contracted between willing parties anyway (you and I can buy a house as tenancy by the entireties property if we want), some can't. For example, a pre-nup can stipulate that one party agrees not to be included in the other's will, and only take the state's spousal share at death. But if I'm not your spouse, I can't take that share because I'm not legally entitled to it.

So suppose a couple is married in Massachusetts and later on, a federal marriage amendment passes that invalidates their marriage. What of their pre-nup? Can a court refuse to enforce it on the grounds that the marriage is invalid, even if it was valid when the contract was formed? Does that refusal violate the contracts clause? Also, like most any other contract, the parties can stipulate which jurisdiction's law should govern it. What if they choose Canadian law to govern it? (It's been a while since my Conflicts of Laws course, and I didn't always understand it anyway, but I think that if the parties go into this with eyes open and there's no duress or unequal bargaining power, they can choose the law of a jurisdiction relatively unconnected to the case.)

What if a federal marriage amendment leaves the decision up to the states, and thus the Massachusetts marriage is still valid. But the parties move to some other state without gay marriage, where they choose to divorce. Let's say the FMA has been construed to mean that states don't have to recognize gay marriages if they don't want, and that includes granting divorces, because that presumes some limited form of recognition for jurisdictional purposes. Would that state still have to enforce the contract? If it doesn't, is that a contracts clause problem, notwithstanding the FMA?

Sorry this is a little disheveled, but I wanted to toss it out there. I would love to hear from anybody who actually knows something about contract law or family law or property law or conflicts of laws or constitutional law or...well, better I'd better stop listing all the areas of the law I don't know much about.

For entertainment purposes only
For those with a lot of time on their hands (i.e., anyone with enough free time to waste it on BTQ) please note the recently added disclaimer in the right column. The ever risk averse Milbarge has prodded me into placing some kind of disclaimer on the site "just in case" and so I have done. I am now soliciting editorial advice from our devoted fans. Give me your suggestions on how to improve upon my initial draft (read "turn into a ridiculous travesty of a disclaimer while still covering Milbarge from liability"). Let's see if we can make this disclaimer go to 11.

"You can actually pinpoint the second when his heart rips in half."
The other day, I mentioned the rejected marriage proposal at halftime of a recent basketball game. I promised a link to the video if I could find it. Behold. (Note that you might need to turn off your pop-up blocker if you have one, but it might depend on your system.) Have a little schadenfreude on me today.

(The source of the title of this post is Bart Simpson -- speaking of Ralph Wiggum -- in this classic Simpsons episode.)

Every Tuesday Is Fat For Me
Fitz-Hume often accuses me of being hostile to religion, or anti-religious, or something. I disagree. As evidence, I offer that just last night, I helped perform a religious ceremony, of a sort. A good friend who is a good Catholic is in town. He is not going to be eating meat during Lent, which started today, Ash Wednesday. So I went out with him for a thick steak to bide him over. And I drove, so it couldn't have happened without me. So there, Fitz. I'm not anti-religion. I'm pro-anything that gives me a reason to have a nice cut of beef with good company.

"To Do" List
Our office is on the 22d floor of our building. I was riding the elevator down this evening, and two women got on at the 20th floor, so we had plenty of time together in the elevator. One of them was telling the other that she had called her husband to let him know that she would be working late. My paraphrased recreation of the rest of it:

...So I told him that he had to go pick up Kid A at blahblah and take her to blahblah. And then he had to get Kid B from blahblah and drop her off at blahblah. And then go pick both of them up at blahthirty. Somewhere in there, you've got to feed them and make sure they take their baths. Oh, and Kid A has test, so you need to go over spelling words with her. He asked me, "Is this list ever going to end?" [The other woman chuckled at this.] So I told him that there was plenty of laundry around if wanted to wash a load.

Around this time, the elevator doors opened and I lost the conversation, but the import was that these women never had enough time to do what needed to be done. But I was thinking how different that conversation would have been if no kids were involved. The sum of it: "Honey, I've got to work late. See if you can toss a load of laundry in." That's it. And people choose to have kids and do this to themselves? Really? Uh...why, exactly, again?

On the walk home, I passed a car with a bumper sticker reading, "If it doesn't feel good, why do it?" Indeed. Vermont tags, by the way.

(Note: Please, don't extol the good things about having kids to me. If you say they exist, I'll take your word for it, you masochists. I'm kidding here. Of course, this list wouldn't seem as bad if it were shared by both parents, and maybe the kids didn't have to go to whatever their little activities were. But it just struck me as funny, and I was grateful I didn't have a list like that facing me when I got home. I'm up this late by choice, not because some squalling kid roused me from sleep's embrace.) :)

I haven't said much about the scandal that is engulfing the University of Colorado football program. The short version is that there have been allegations that the team used sex parties to lure recruits, and most noted, allegations from a former kicker, Katie Hnida, that she was raped while on the team (she has since transferred). I don't want to prejudge anything, so I'll let the investigations run their course. You shouldn't have much trouble finding coverage of this, but here are some stories from ESPN about the school's decision to suspend head coach Gery Barnett, about who is to blame for all this, and one concluding that Barnett is.

But I'm motivated to say something in response to Gregg Easterbrook's comment the other day that Barnett "was suspended for saying that Hnida is a terrible player." He did say that, but that's not precisely why he was suspended. Reporters asked Barnett about Hnida's allegations the day after they broke. His response:

"It was obvious Katie was not very good," he told reporters. "[Players] respect your ability. Katie was not only a girl, she was terrible, O.K.?"

Players respect your ability. So said Barnett. Reading that and seeing the videotape of Barnett saying it, I think there are only two possible explanations. Either:

(a) When a resporter asked about Hnida's rape allegation, Barnett said, "She was a bad player." It was simply the most nonsensical non sequitur ever. But why would Barnett make such an "argument"? This is such an indirect answer to the question that I just cannot believe that Barnett would present it as his whole response. It's like answering, "What color is the sky?" with "The grass is green." I agree with Easterbrook that if the school suspended Barnett for this, it doesn't make sense. What it should have done is had him checked for signs of a stroke.

(b) I think the other explanation is more reasonable. In response to a reporter's question about Hnida's rape allegation, Barnett said, "Players respect your ability, and Katie was terrible." The conclusion Barnett has apparently made is that if Hnida was raped, it was because the players did not respect her playing ability. It doesn't automatically follow that her poor kicking skills excused the alleged rape. But Barnett did not expressly disclaim that possibility, either. And, I think it does follow from Barnett's statement that he thinks Hnida would not have been at risk of being raped had she been a better player. Not to belabor it, but I find this attitude abhorrent, especially in someone charged with the shaping of young men.

I hope it doesn't seem like I'm becoming a hard-liner with respect to a school's ability to suspend people. Former University of North Carolina basketball coach Dean Smith used to say that athletics (at least at big-time schools like CU and UNC) are a university's front porch -- not the most important aspect of the school, but often the most visible. And you don't want your front porch collapsing around your house. To stretch the analogy, Gary Barnett saying that one's vulnerability to rape is dependent on one's ability to boot a football down a field is like a termite infestation on Colorado's front porch. The best thing to do is tear out all the boards and start over. Barnett is right to say it's all about respect. He admits his players had none for Hnida -- and that's a failure of leadership on his part. And no one associated with the University of Colorado -- including the taxpayers of that state -- should have any respect for Barnett's ability to be the public face of the school.

Wednesday, February 25, 2004

You got that right
From Legal Fiction:
I think there are literally millions of single issue Bush supporters, who care only about protecting the nation from terrorists. Many of these people hate everything else about Bush, but fear that Democrats won't be tough enough.

I have many problems with the Administration but I don't "hate everything else about Bush" - not by a long shot. As for me, fear = know and I have yet to be persuaded otherwise. For the time being, I'll put up with ballooning deficits, a moonbase, trips to Mars, the short-sighted endorsement of the FMA, and John Ashcroft's nudity problems because I don't trust wafflin' JFK or John Boy Edwards to keep me and mine safe. I am willing to entertain discussion on how wrong I am to assume that F-bomb or Edwards won't be tough enough in the struggle against terrorists and their sponsor states.

You Might Could Find This Interesting
Fitz's recent post about the Yankee/Dixie quiz, and this similar one at Southern Appeal reminded me of a very cool set of suvery answers to dialect questions like this. I found out about it via Is That Legal?. The full list of 122 questions is here. The cool thing about these is that the results are expressed as points on a map, so you can easily see the regional divides in some of these dialectical differences. Most of the questions on the Yankee/Dixie quiz are here, I think, and even though you lose the interactivity, you gain the ability to see how common your answer is and where people say it the same way. Plus, there's a whole bunch more of them.

This post's title is a reference to one of the questions, about whether it is proper to use a construction like "might could" or "used to could." Prof. Muller liked the one about what you call it when it rains while the sun is shining. The funny thing about that one is that, while in most cases I had at least heard the other dialects' name for things, the only name I had ever heard given for this phenomenon was "the devil is beating his wife." (Actually, I think I heard it as "whipping his wife," but no matter.) I knew that was pure Southern-fried colloquialism, but I also thought it was one of those things that only Southerners had a name for, and I never knew there were other names for this. It turns out that there are, although "I have no name for this phenomenon" is the most-common answer. It's funny how one can be in such a small minority (only 6.43% said the devil thing) and have no idea that there's another name out there.

So, perhaps I ought to be more charitable in regard to my "in line" vs. "on line" peeve (when referring to standing around waiting with a line of people). In the survey, 88.30% said "in line," agreeing with me and Scott at L^3. Only 5.49% said "on line," and 5.36% said both were fine. Perhaps these folks are as ignorant as I was, and have never heard the term "waiting in line," and if so it was wrong of me to criticize them for being confusing and illogical in their location locution. Then again, I am in the vast "in line" majority, and I had often heard -- and been annoyed by -- the "on line" weirdos, so it seems doubtful that they had never heard of the proper term for this activity.

Anyway, it's always nice to have more evidence for one's position. And the maps are neat, too. Thanks to Prof. Muller for the link.

Locke v. Davey
The Supreme Court decision in Locke v. Davey, one of the Term's most-watched and most interesting cases, issued today. The Court reversed the Ninth Circuit's decision and held that the Washington state scholarship program at issue was not unconstitutional, even though it denied funds to theology students. The Chief Justice wrote the opinion, and Justices Scalia and Thomas dissented. Howard has links to the various opinions here. My earlier discussions of the case are here and here. Much more is also available here, via the excellent Life, Law, Libido Supreme Court Roundup feature.

Tuesday, February 24, 2004

Here is a fun little linguistics quiz that rates your propensity for Yankee or Dixie. My result?
94% (Dixie). Is General Lee your father?

(link via Taunting Happy Fun Ball)

From President Bush's speech yesterday:
"The other party's nomination battle is still playing out. The candidates are an interesting group with diverse opinions: for tax cuts and against them; for NAFTA [the North American Free Trade Agreement] and against NAFTA; for the Patriot Act and against the Patriot Act; in favor of liberating Iraq and opposed to it. And that's just one senator from Massachusetts."

That's funny! Almost as funny as the White House's prediction of 2.6 million new jobs this year.

(link via Andrew Sullivan)

Monday, February 23, 2004

"Nudie Magazine Day!"
ESPN is reporting that a 12-year-old sixth grade student in West Virginia has "apparently" (the article uses the qualifier, from some reason) been suspended for bringing a copy of Sports Illustrasted's swimsuit issue to school. School officials called it "sexually suggestive."

The boy is upset. Here's a slippery slope argument John Ashcroft can love: "You saw bad stuff on the Super Bowl halftime show," Justin said. "You could see more on that than in [the magazine]." (To clarify: the slope would be from punishing CBS for the halftime show to banning the magazine.) Well, maybe not. I have seen still photos of l'affaire Janet, and at best I can make out one partially obscured nipple. According to Slate's "In Other Magazines" feature (I still haven't seen my copy of SI), the issue contains:

36 shots of women in swimsuits [only 36? what a rip-off!]; 15 of women wearing only part of their suits and positioned strategically next to inner tubes, barns, etc.; eight women baring all or part of their nipples via moisture, chainmail, etc.; six women wearing nothing but body paint; one woman being smelled by sheep; another woman being fondled by a baby alligator; [and] another woman whose bikini top is being removed by a dead-looking but ostensibly playful raven.

Phrases like "baring all or part of their nipples" and "wearing nothing but body paint" sound to me like one is capable of seeing much more in the swimsuit issue than even the most eagle-eyed TiVo-er of the Stupor Bowl.

I don't see anything wrong with the swimsuit issue generally, and I think the fuss over Janet's peek-a-boob is way overblown. (Please don't comment on that; I know many people strongly disagree.) But speaking as a former 12-year-old boy, let me testify that everything is sexually suggestive to boys that age. And at a minimum, I have no doubt that the magazine would be quite disruptive in the ordinary course of things. As evidence, see the boy's mother's comment that "That is not sexual harassment. I doubt my 12-year-old is the only one looking at Sports Illustrated." Exactly. It was probably traded around faster than the gossip over who likes whom. (I'll leave aside the matter of whether the boy was accused of sexual harassment, absent any facts going to that issue.)

Was a three-day suspension an appropriate response? Probably a little harsh. Would my views be different if this were a high school instead of an elementary school? Probably so. But do I have a big problem with banning the swimsuit issue from this school and punishing a kid who brings it in? Nope.

(Note: This title's post taken from the Adam Sandler movie Billy Madison.)

Milbarge At Large
What I am doing at work: Routine stuff also. Trying to wrap up a pretty basic habeas case quickly because my next two cases will be quite difficult: an interpleader (see here and here) case, and a government appeal in a Fourth Amendment case.

What I am doing at home: Still dealing with car hassles. Now it's a dead battery. (Note to Sherry, to whom I recommended a Toyota: this is all my dumb fault, not the car's. Car good, Milbarge careless.)

What I am reading: Just started House of Leaves by Mark Danielewski. Don't ruin it, anybody, even thought I'm not sure I'll be able to stick it out.

What I am watching: Klute. I like all the Alan J. Pakula films I've seen. I liked The Pelican Brief even if they did chicken out by not having Julia Roberts and Denzel Washington get together. And I really liked Presumed Innocent. (OK, so I forgot about The Devil's Own, but I don't remember thinking it was awful when I saw it.) Anyway, Klute stars Jane Fonda in an Oscar-winning role as a call girl, and Donald Sutherland is at the top of his game as a private investigator looking into the disappearance of a friend who was a trick of Fonda's. It's part of Pakula's so-called "Paranoia Trilogy" along with The Parallax View (with Warren Beatty) and All The President's Men, which makes me feel the way Notre Dame fans must feel about the scholcky Rudy. Of all of these, I think I like Parallax View the best, because of the ending, which I won't give away here.

What I am listening to: The Very Best of Elvis Costello. Accidents Will Happen: "Oh I just don't know where to begin...."

The Essential Johnny Cash. One of the best lines in music history, from Big River:

I met her accidentally in St. Paul, Minnesota.
And it tore me up every time I heard her drawl, Southern drawl.

What I am thinking about: Racism and rape and Sex and the City. (Separate) posts coming later.

What I am not thinking about: Ralph Nader.
UPDATE: I'm not really thinking about the Ninth Amendment either. The last week the blogosphere has seen a huge number of bits and bytes devoted to this controversial amendment. If you're the kind of person who is now desperate for links and somehhow doesn't have them, go here. I will probably get around to reading some of this stuff sometime, but goodness gracious I am not fired up about it now. Oh well.

Tidbit: At least three of the women I have dated in my life have since also dated women. Remember, folks: Correlation does not prove causation. As a bonus tidbit, I also once dated sisters, although not at the same time. I'm not The Fonz, after all. (To brighten your day, here's a .wav file of Fonzie's signature note: "Aaaayh!")

Fitz-Hume: Chapter 3 - Stop me if you've heard this one
What I am doing at work: Not much (yes I know, ha-ha, make all your little jokes). Mostly, I am tying up loose ends in several smaller cases. My judge is retiring sometime this summer and all his cases must be resolved or transferred to other ALJs. Our legal secretary has taken (another) vacation, so I get to spend the week making phone calls and moving papers from one filing cabinet to another.

What I am doing at home: Looking for a job. I also re-waterproofed my Gore-tex rain jacket this weekend.

What I am reading: Thomas McGuane's Some Horses

What I am watching: Lost in Translation

What I am listening to: searching iTunes for songs appropriate to include on a new fishing trip mix CD (if crackheads break into my car I am sure they'll leave this one, too)

What I am thinking about: How can I learn to enjoy running? I hate it so much, yet it is so very necessary to my health. I need to learn to love running. Colonel Rhombus, do you have any wisdom to impart?

What I am not thinking about: What a mess the EU is

Factoid: I once chased down and apprehended a pair of purse-snatchers in Guanajuato, Mexico. I was hailed as a hero by locals and tourists alike. The locals bought me many celebratory beers and we partied like it was 1999 (even though it was only 1998).

None Of The Above?
I saw that California Governor Arnold Schwarzenegger yesterday said he supports Orrin Hatch's proposed constitutional amendment to let long-time U.S. citizens be eligible to be elected President. Here is the word on whether the man himself would take advantage of such an amendment:

Schwarzenegger said on NBC's "Meet the Press" that he has been too busy with California's problems to contemplate a future run for the White House. "I have no idea, I haven't thought about that at all," he said.

At all? As in never? OK, whatever you say, Gov.

Anyway, what I found funny about the story was that Schwarzenegger's examples of long-time (foreign-born) citizens who have made significant "contributions" to America were former Secretaries of State Henry Kissinger and Madeline Albright. Um, if the best choices we can come up with are Kissinger, Albright, and Schwarzenegger, I might have to rethink things. Actually, I support the amendment, because I like Jennfier Granholm. Of course, we could always just draft Eugene Volokh. (By the way, if anyone can find a link to the thoughtful analysis of the natural-born clause that I think I remember seeing on Volokh's site recently, please let me know. Their search engine drives me batty.)

"Honey, Will You...Where Ya Going?"
I am so glad I stayed up and watched the crappy local news for this story from the Wizards/Pacers NBA game the other night:

The crowd's focus was distracted during the Wizards' third-quarter rally by a bizarre stunt during a timeout. A man disguised in a bank-teller machine costume proposed to a woman, who appeared stunned and embarrassed and immediately ran toward the Wizards' tunnel before a security guard stopped her. She then ran up the stairs among the fans and was booed. The arena's replay screen flashed "She said no!!" The fans were abuzz over the incident for several minutes as play continued.

I saw the video, and it is freakin' hilarious. Do whatever you have to do to see it (I'll post a link if I can find it). It seemed to be some kind of instant-win contest. The woman was blindfolded, and had to stagger around until she could find the ATM, whereupon she probably thought she would win a prize. The guy was wearing the costume, an inflatable thing like those sumo suits (except it covered his whole body). So she finds it, and starts cheering as she pulls the blindfold off. And then the guy takes the suit off and gets on one knee. The crowd catches on that it's all a fix, and starts clapping as he pulls out a little box. The woman is shaking her head, but at first I thought she was just in shock, as in "I can't believe it." But apparently, she meant "no." She took off running and did not look back. The look on the guy's face was priceless -- I don't know if I have ever seen anyone look so stunned.

I would love to know the story behind this. Did he accompany her to the game and just slip off for a while, or was she there without him, and if so what excuse did he give for not going with her? Did she go sit back in her seat for the rest of the game? They booed her? Will the Pacers ever let anybody try such a stunt again? Most importantly, did she say no because of the way it happened, or because it was him? Is it all over now? Clearly, I'm fascinated by this. If anybody hears a follow-up, please please let me know.

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    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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