Begging The Question

Friday, March 05, 2004

Random Thoughts
It's a slow Friday, and there's not much going on worth a full post, so here's what's on my mind.

1. I bought a new tube of toothpaste the other day. The instructions say that for best results, I should squeeze from the middle of the tube. It's one of these with two kinds of whatever inside that mix when you squeeze them out. So I was wondering, am I squeezing from the middle because I'm a slob, or because I'm fastidious? Actually, the fact that I read the instructions on a tube of toothpaste probably tells you all you need to know.

2. I saw that McDonald's is doing away with "supersize" menu items. I'm not a huge McDonald's fan -- I've probably been half a dozen times in the last half a dozen years. But I don't want this trend to carry over to the fast-food establishments I do frequent. But make no mistake: the McDonald's folks aren't stupid. They know people want that much food. And without the supersize option, they'll just buy two regular fries rather than one supersize fries. Guess which costs more? McDonald's will make more money this way, people will still get as much or more food than ever, and no measurable health benefits will result from this move.

3. You know me: I love the gossip. So I saw that Ashton Kutcher is rumored to be 30 years old, and not 26 as was the general assumption. The evidence is a voter registration card allegedly discovered by the National Enquirer. Are you like me? Are you less surprised about the possibility that Kutcher might be older than by the possibility that he votes?

4. In case anybody doubted, I can be romantic. I recently saw a tv ad I would descibe as "cute." It's for an allergy medicine, and the premise is that an allergy-prone city girl can visit her boyfriend's family back home on the farm with nary a sniffle thanks to this miracle cure. Anyway, it's a lot of story to pack into thirty seconds, but it's nicely done. Also, I was flipping around the radio dial last weekend, and stopped for a second on the oldies station. They had a request show going, and some guy called in to request "Daydream Believer" by the Monkees. When the host asked who it was going out to, the guy said that he was driving a limo, and called in on behalf of the ten women in the back for a bachelorette party. It amused me to think of these women belting out "Cheer up, Sleepy Jean!" I'd bet a million dollars that the bride-to-be was once a homecoming queen. Anyway, just two cute moments to prove I have a heart.

5. I was checking my refrigerator for a weird vibrating sound, and looked down the narrow space between the fridge and the wall, and spied something affixed to my fridge. It was a magnet picture frame holding two small pictures. I can only assume they're of the person who used to live in my apartment. One is of her alone, and the other is her with friends. Both are in one of those four-for-a-dollar quick photo booths like they have at the mall. Anyway, it's just strange to find this after living here a year and a half. I think I'll leave it for the next tenant to find.

6. There was a new Yogi-ism from Yogi Berra in a recent Sports Illustrated. I hadn't heard a good new on in a while -- that AFLAC commercial is too contrived. Anyway, Yogi was at a ceremony honoring Yankee greats, and the scoreboard flashed the names of deceased legends. Yogi said to teammate Whitey Ford, "Boy, I hope I never see my name up there." Nice.

7. I saw that Air Force, Navy, North Carolina, and Michigan State might play basketball games on an aircraft carrier next fall (on Veterans' Day, I think). Think President Bush will fly in for the tip-off? At halftime, he'll unfurl a banner reading "Mission Accomplished!" (I know it's cheap, but it's funny.)

8. This is good news for me. The Biography Channel is now showing re-runs of NewsRadio and Night Court weeknights at 7 and 11. These are two old favorites of mine, and I'm glad to see them back.

OK, now my mind is clear, and I can start posting substantive stuff. (Don't hold your breath waiting, though.)

It will not sit well for those of you looking for intellectually stimulating entertainment on a Friday night.
Is Roger Ebert reviewing Broken Lizard's Club Dread or BTQ? Substitute "blog" for "movie" in the paragraph below and you'll see what I mean.

Do I recommend this movie or not? I am at a loss to say. It is what it is. Criticism is irrelevant. Why are you even reading a review of "Club Dread"? You've seen the TV ads and you already know (a) you won't miss it or (b) not in a million years. There will be better movies playing in the same theater, even if it is a duplex, but on the other hand there is something to be said for goofiness without apology by broken lizards who just wanna have fun.

The title is taken from a review of Point Break - one of my guilty pleasure movies.

Thursday, March 04, 2004

Blown Away
Several bloggers have noted the story about a woman in Connecticut who wants to defend herself against a vehicular manslaughter charge by arguing that she was not driving the car, and instead she was performing oral sex on the driver (the victim). The mind reels at the counturs of contributory negligence in a possible wrongful death suit, but never mind that for now.

Anyway, I thought of this when I read today's decision in United States v. May, a Fourth Circuit case involving a cross-burning. Howard noted the case when it was argued, and in his absence, I have to go find opinions for myself. This was a government appeal of the district judge's downward departure at sentencing. May argued, and the judge agreed, that the victim provoked the cross-burning. The U.S. Sentencing Guidelines provide for a departure based on "victim conduct." I see it most often in things like drug deals gone bad.

This controversy started when a black man moved into the home of a white woman who lived in May's neighborhood. May was upset enough at this development to add to his "No Tresspassing" sign the words "Especially Niggers." The Fourth Circuit put it mildly when it said that "Relations between Sanders [the black man] and his neighbors were poor from the start." May and Sanders had a few confrontations, and this culminated when May and a buddy burned a cross on the buddy's lawn. The cross was pointed at, and could be seen from, the home of the interracial couple about 20 feet away.

Eventually, May pled guilty to charges of violating Sanders's civil rights. But at sentencing, the judge granted May's request for a downward departure from the Guidelines range because of Sanders's actions. May said that Sanders had a felony record, that May suspected Sanders of criminal activity, and basically that Sanders was a constant threat in the neighborhood (pot, meet kettle). Although he was facing eighteen months in prison, May only got one month plus time served. [EDIT: It was actually one month with credit for time served, so I don't think there was any post-trial jail time. And here is a Post story on the decision.] The government appealed, which doesn't happen every day, and showed how serious it was by having Assistant Attorney General for Civil Rights R. Alexander Acosta argue the case, which really doesn't happen everyday. (So don't say I never praise the DOJ.)

The Fourth Circuit was pretty critical of the district judge's actions, and sent the case back for resentencing. In sum, the victim's conduct here wasn't the kind of thing contemplated by the Guidelines (most of it wasn't even wrongful or was just baseless speculation), and May's response (burning the cross) was hardly the most appropriate or proportional course to take. Anyway, it's an interesting application of a little-seen Guideline provision.

But I started out with sex, and now the reason why this case reminded me of the vehicular sex defense case. In this case, May had been out on bail, but he tested positive for cocaine. His defense: He "claim[ed] that he had tested positive because he had 'recently been with a female who had cocaine on her tongue and that they had been kissing and that she had performed oral sex on him.'"

That's right, folks, he was a victim of second-hand coke!

Or El Dude-a-rino if you're not into the whole brevity thing, man.

Wednesday, March 03, 2004

Baby, You Can Drive My Car
I saw that Volvo has unveiled a concept car designed entirely by women. Its debut is at an auto show this week. Part of the project was to design a car for women, too, in the sense that input from women consumers was considered and Volvo found that men are much less demanding than women when buying cars (in terms of feartures, I suppose, and I'm not aiming this at you, Sherry -- really!). And they buy more cars than men, too. Here is an interesting "Women in Management" presentation for Volvo from a couple of years ago. Although some of it seems to be over-generalized (when is marketing not?), the point was that by meeting women's expectations, Volvo could exceed men's.

Volvo acknowledges that this car will never end up on the road. But it will probably serve as an inspiration for future car designs across their product line. Among the features of this car are gull-wing doors and fold-up rear seats (like movie theater seats) to provide better access and storage, a hybrid engine, and easy-to-clean paint and interiors. The women wanted a car that was easy to maintain, and so it's designed to go 50,000 km without an oil change. In fact, the car has no hood (the entire front lifts up) because the drivers won't be doing any maintenance and will instead take it to a mechanic. Some of the features might fuel stereotypes about "women drivers," such as sensors to facilitate parallel parking (and a system that will even take over the steering for parking!) and headrests designed with a valley for women who wear their hair in a ponytail. However, I saw in another version of this story that the designers nixed suggestions to include a cappucino machine and platforms to support high-heel shoes.

Anyway, the article has a lot of stuff about differences between Sweden and the U.S. that don't have a lot to do with cars, but the piece is worth reading if you're into marketing or design, or if you want to know what features your next car might have. And of course, I can't finish this post without a reference to "The Homer," a car designed by Homer Simpson in a 1991 Simpsons episode called "Oh Brother, Where Art Thou?"

Ladies and gentlmen, a little vignette about the newly-coronated Democratic nominee for President that I never saw on Kausfiles. I was catching up on reading my Sports Illustrated magazines, and saw a brief Q & A with Sen. John Kerry. Most of it was about his sporting history. And then, this exchange:

SI: If you could challenge President Bush to any sport, one-on-one, what would it be?

Kerry: He's a better runner; I'm a better hockey player. Maybe we'd have to compete on neither ice nor asphalt -- how about windsurfing?

My reaction was a mild chuckle (and not just because hockey is not a one-on-one sport except for penalty shots). I took this to be an almost absurdist answer, along the lines of "bullfighting" or "emu-racing" or something. Windsurfing, yuk, yuk, yuk. That Kerry, what a jokester!

Then, I read the very next question:

SI: A few years ago you were profiled in American Windsurfer and said windsurfing can be like meditation. Explain.

Kerry: It's the mixture of the wind and the sea and flying. There's a lot of freedom, and when everything is dialed in right, you're just right there, focused on getting it right.

SI: Haven't you windsurfed from Cape Cod to Nantucket?

Kerry: Yes, four times. It takes about six hours. When you get tired you just drop your sail and sit for a minute. Or if you get dunked, you drop your sail too.

Huh? Whazzat? Kerry's an accomplished windsurfer who has been profiled in a magazine about it? Hmm. Not so absurd, then, to suggest windsurfing for a one-on-one (or, as the President puts it, mano a mano) showdown. Maybe I misread it, so correct me if I'm wrong, but the clear import I took from Kerry's answer was, "He's good at X; I'm good at Y. So let's compete in Z, a level playing field where neither of us has a home-ice or home-asphalt advantage."

But then he pulls out windsurfing, and although I don't know for sure that the President has never windsurfed, I kind of doubt he's done it as much as Kerry. It is decidedly not a level playing field. After trying to come up with an analogy for this, I realized: it's a hustle. It's like a good pool player pretending to be bad to sucker you in to betting big, whereupon the hustler's skills miraculously re-appear and he wipes you out. "Oh no, Br'er Bush, don't throw me in the water!"

What is so pathetic about this is Kerry's need to hustle in a competition that will never take place. They might as well have asked him what one item he would take to Mars with him. Hey! -- maybe he can go windsurfing there now! *sigh* It's going to be a long, long campaign.

President will announce plan to end recession, war in one fell swoop
AP (Washington) - President Bush is expected to unveil the centerpiece of his re-election campaign strategy today at the White House. Sources within the Administration have suggested that the President will set out a "two birds with one stone" solution to what are expected to be the two major issues of this year's presidential election season: the war on terrorism and the so-called jobless recovery. No one from the White House would speak on the record but an unnamed senior aide is reported to have said, "I can't get into the details, but I'll give you a one word hint: conscription."

You heard it here first!

Tuesday, March 02, 2004

Someone's Cold, Dead Fingers Are Being Pried Open
The Senate today voted to extend the assault weapons ban. The vote was expected to be very close, and Dick Cheney emerged from Middle Earth in case a tie-breaker was needed (it wasn't, I just wanted to poke fun at Gollum Cheney). I doubt it will make it through the House, so we'll see what kind of compromise they cobble together.

Also, it looks like they will pass an immunity bill protecting the gun industry from lawsuits. I disagree with that plan, but don't have a lot of time to spell it all out now. Basically, I think the common law tort system and civil procedure rules are fully capable of weeding out the frivolous claims, and the industry ought to be liable (at least) when a manufacturer knowingly ship guns to dealers who knowingly sell guns to criminals.

Finally, proponents pulled a proposal that would end the D.C. gun ban, apparently on the urging of noted liberal Orrin Hatch. I mentioned a federal district court opinion upholding the ban a few weeks ago.

UPDATE: Well, what the heck do I know? After the assault weapons ban amendment passed, the immunity bill was scrapped. So, it looks like no gun laws either way. But that also means that the ten-year assault weapons ban will expire.

We Like To Call This "Foreshadowing"
From Rick Hasen's Election Law Blog, here is a story about glitches with electronic voting machines across the country. So far, no evidence of human error or anything nefarious, but it's not like no one saw this coming (and here and here and here and here and here and here and here and need I go on?) Tip o' the iceberg, folks.

Wake Me Up Before You Go-Go (To Jail)
Catching up on reading the Criminal Law Reporter, which I'm allowed to do at work because it's "professional development reading," I see another case involving a sleeping lawyer. You might remember the sleeping lawyer case from Texas from a few years ago, Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc). That case got some notoreity mainly because it was a death penalty case, and because the original Fifth Circuit panel held that a sleeping lawyer was not necessarily ineffective in the constitutional sense.

The newest case is Pinkins v. State, 799 N.E.2d 1079 (Ind. Ct. App. Dec. 8, 2003). Pinkins was charged as part of an awful gang rape, which appeared to be something of a pattern for the participants. (Aside: Because it doesn't really fit anywhere else, I'll go ahead and mention here the trial court's bizarre decision to allow a Transportation Department street sweeper to testify as an expert on where glass falls from a broken car window. Read the opinion if you want more, but the appeals court agreed that, even under the generous standard for admitting expert testimony, the district court erred.)

Anyway, a big part of the state's case was DNA evidence, but trial counsel "dozed off" during part of the testimony from the state's forensic expert. Counsel later "testified that he suffered from sleep apnea and was taking over-the-counter medication during the trial to stay awake." The court found that counsel dozed "only briefly" and that "this momentary lapse during the three-week-long trial was not noticed by anyone in the courtroom, including Pinkins." Counsel did cross-examine the witness, although forty transcript pages (the cross-examination) may or may not be as thorough as the court treats it. I've seen testimony take forty pages to describe very little of substance, and forty pages is a mere blip out of three weeks' worth of transcripts.

The appeals court relies on Pinkins's failure to point to any specific issue counsel slept through or failed to address on cross. The court is unwilling to state a blanket rule that a sleeping lawyer is tantamount to having no lawyer at all. The only other cases it can find are Burdine, where the Fifth Circuit also declined to adopt a per se rule that sleeping counsel is always ineffective, but instead held that that particular sleeping lawyer was bad enough to be ineffective; and a Ninth Circuit case where the sleeping was "substantial" and defense counsel did not participate in large parts of the trial.

I'll have to keep an eye on future issues of the Criminal Law Reporter or Marcia Oddi's excellent Indiana Law Blog to see what the Indiana Supreme Court does with this case. It might also be a good candidate for a cert. grant because the federal Supreme Court wouldn't have to deal with the Teague bar, if I understand it correctly.

On a broader level, I'm not sure what the answer to these cases is. On one hand, should we reward defendants for a momentary nod-off that no one noticed and probably had no actual bearing on the result of the case? On the other hand, it's so hard to document after the fact the precise moment where a lawyer slipped into the warm embrace of Somnus, and what the lawyer might have missed. So, maybe a per se rule is appropriate, given that effective counsel is a constitutional right, and it shouldn't be the defendant's burden to poke the lawyer when counsel's eyelids dip below the horizon. There's also no good reason a lawyer can't go hat in hand to the judge and beg for a recess. If nothing else, the very act of getting up and walking to the bench will adrenalize any lawyer I know.

Because the burden is on the defendant to prove that counsel's deficient performance prejudiced the case, there really isn't any way to win on a claim like this unless the lawyer slept so much that someone noticed it and got it in the record. I think that the chances of that happening are slim for anything short of a pretty deep snooze. (Then again, I'm not a trial attorney, so perhaps I don't know how easy it would be. Any thoughts from people who actually go to court would be appreciated.) If that's the case, I'm willing to take an overinclusive per se rule instead of a difficult-to-win-on-anything-less-than-really-egregious-facts case-by-case analysis. We'll see if the Indiana Supreme Court agrees. In any event, I doubt this case will be as newsworthy as the Texas death case, so if I miss the final result, I would greatly appreciate a pointer.

UPDATE, 3/5: Marcia Oddi herself informs me that the Indiana Supreme Court has today "denied transfer" of Pinkins's case, which I assume means they won't hear the appeal. Thanks for the pointer!

Monday, March 01, 2004

Milbarge: Large And In Charge, cont'd
What I am doing at work: Orals. Not as salacious as your dirty minds might make it sound. We do our easiest cases in telephone conference calls with a panel of judges, rather than in written memoranda. A single panel might dispose of fifty or sixty cases in a few hours on a good day. We do these sessions twice a month, with different panels at each, and half the office assigned to each session. My cases for this month's session are due to be finished today. These are cases where, for example, the appellant's notice of appeal was late, or some other easy procedural thing, but they can also be straightforward appeals raising issues with clear answers. The only real limit is the ability to explain a case verbally in a minute or two. In some ways, it's like when a professor in a first-year law class asks a student to brief a case. I explain what kind of case it is and the posture ("John Smith seeks to appeal the district court's order denying relief on his 2254 petition...") (Aside: 28 U.S.C. sec. 2254 governs federal habeas corpus review of state court convictions; the federal conviction analogue is section 2255.) I briefly decribe what the case is about and what his claims on appeal are. Then I explain why the claims fail (by nature, cases easy enough for orals don't usually involve reversing the district court, but it does happen every once in a while), and ultimately recommend a disposition. The panel then indicates whether it agrees or not.

Things get dicey sometimes. We try to pick cases that are easy, and where we think the result is clear. Sometimes the judges disagree, and sometimes we confuse them because we don't explain things well enough. And people process information in different ways, and occasionally the judges can't follow a rambling explanation over the telephone. (One wonders what distractions they have in chambers; I'm glad we don't do these by videoconference.) I know that oral advocates sometimes hope for certain questions so they can better explain their case and tailor their argument to a judge's concerns. In orals, we hate to get questions. I don't even take the record into the conference room with me. I just have a "script" (my "brief" of the case). It's not good for anybody if I try to fumble through the documents in the record while the judges wait on the phone. If they ask a question I can't answer without referring back to the record, and this hasn't happened to me yet, I'm just going to say I'll look it up and come back at the end of the session, or just write it up for them. As painful a long silence can be at oral argument, it is even worse during a conference call, so I just don't plan on dealing with it. I feel more confident about my ability to answer a question from memory ("Did he raise this below?" etc.) than I am in my ability to locate a particular document in the record at a second's notice. But, I like the feeling I get afterwards when I've had to think on my feet and address an issue a judge raises at orals. Ultimately, the idea is to pick cases that don't even raise those questions, although you never know how those idiosyncratic judges are thinking.

The toughest thing about doing orals is the triage involved in picking them. I have to read a certain amount of the briefs and record to see if it's an orals-worthy case. But I don't want to read too much and then decide it isn't; that's a huge waste of time since I'll do it all over when I write it up in a memo. And there are some cases I just don't like doing in memos, like ineffective assistance of counsel claims. Not that I don't think some lawyers are ineffective, and not that I wouldn't have written some of the decisions on that issue differently. But I hate having to write two pages spelling out the applicable standards, even if it's just Williams v. Taylor and Strickland v. Washington boilerplate, and then spend two paragraphs explaining why this claim doesn't cut the mustard. So anyway, last month was good for me, and I was able to clear thirteen cases at orals. This month it looks like I'll only have two.

What I am doing at home: Maybe if I say I am cleaning my apartment, it will actually happen. So that's what I'm doing.

What I am reading: Not much new, so I'll plug two old favorites: Far Appalachia: Following the New River North by Noah Adams, and The Many Aspects of Mobile Home Living by Martin Clark. Both come with my highest recommendation. Far Appalachia is a travelogue/essay collection by the NPR reporter, and is a set of beautiful vignettes about some beautiful people living in some beautiful country. Mobile Home Living is a farcical legal thriller love story written by a Virginia circuit court judge. A friend's father, who is a local judge in another state, told me that the book caused him marital problems because he laughed so hard while reading that he shook the bed, upsetting his wife. I wouldn't know about those kind of things, as I was able to read it alone. But I was laughing out loud at times. And it's a heartwarmer, too.

What I am watching: I watched the Oscars last night. Well, most of it. Over the weekend, I saw Lost in Translation at a neat little art house that was still showing it. Oh my, what a wonderful movie. I'm not sure how I would have voted if I had a ballot, but I enjoyed watching Lost more than I did Return of the King.

What I am listening to: Leaving Friday Harbor by the Battlefield Band, a Scottish music institution for decades. They've been on "A Prairie Home Companion" several times, which is where I first heard them. I saw them live a couple of years ago, and they're a blast. This album is a nice one for an easy day at the office, like today. Some real toe-tappers.

What I am thinking about: A very weird dream I had the other night. I almost never remember my dreams, so it's odd that I remember it if for no other reason. I fell asleep on the couch while watching tv, and woke up late for work. But at some point in the early morning, I dreamed I was back together with my old high school girlfriend Angie, whom I haven't even talked to in two and a half years. It wasn't a sex dream, but there was a point where we were doing something in public that I've never done in public. Let's just leave it at that. But the absolute strangest part of the whole thing was that we were both very happy and kept telling people that "Jim Carrey is going to be in our next movie." Although I don't remember this part of it, the clear implication was that we were somehow involved in the movie business. I wish I knew what the heck it was all about, but maybe there's some reason I can't remember anything more than that.

What I am not thinking about: Super Tuesday.

Today's kernel of info about me: I've never been skiing. Had some chances, just never done it.

You want it, you got it!
For all the folks searching for a certain linguistics quiz, it is back up and I have provided a link here. Ask and ye shall receive. Be sure to check out our blog before you head over to the quiz. And be sure to come back here and post your score in the comments to this post.

The Southwest Virginia Law Blog has all the details of today's news that the former law student accused of killing three people at the Appalachian School of Law in 2002 has agreed to plead guilty and receive six life sentences in exchange for not facing the death penalty. The shooter, a Nigerian immigrant, was known around the law school as "Peter O." He had previously been declared mentally unfit to stand trial, but the doctors had recently changed their diagnosis after treatment. The victims were the law school Dean, a professor, and a student. Learn more about them here.

I hope this conclusion to the case brings some relief and closure to all involved. I was in law school when the killings occured, and for that and other reasons this incident has always hit home with me. It turned out that Dean Sutin was the good friend of a good friend. I later worked with someone who would have been a third-year that day had she not transferred to another school. I know some people who have had some involvement with Peter O's case. I'm not going to make some argument about law school culture, or gun control, or some big sociological statement. The really amazing thing, though, is ASL's response. This is the kind of thing that could have made the fledgling school close its doors. But it seems to have grown closer together, become more of a community, after the killings. I think that ASL will eventually meet its mission of training lawyers to serve an under-represented area. Anyway, my condolences to the friends and families of the victims, and good luck to everyone at ASL.

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