Begging The Question
Thursday, May 13, 2004
OK, first, if you haven't done so before, go read the original "Lamentation" post from January. Really -- this post won't make sense otherwise. As I'm writing this, the comments to that post have disappeared. But my recollection is that I got about 21 of them, and they were running about 20-1 against me. (I think you should be able to see the comments if you go here and scroll down.) Actually, it might be worth reading just to refresh your memory even if you have read it before. If you're new to BTQ since then, that post is a nice snapshot of my love life and all its problems. Either way, read that post and then come back here.
OK, done? Good. Well, here we go again. I seem to have found myself in a strikingly similar situation. Two big differences, though. First, I like this girl even more. (If we need a pseudonym for her, let's use Elaine, the name of a girl I went out with once in college, before she concluded she was much too cool to date me.) We have really hit it off, we have a lot in common, and unlike New Kate, we haven't ever run out of things to talk about. It's hard to describe any better than this, but I feel even more of a connection with Elaine than I ever did with New Kate. In short, I like her. But the second big difference is that Elaine is even farther away -- over 1200 miles away. And, the U.S.-Canadian border is between us. And, unlike with New Kate and me, who both harbored vague notions of eventually settling in DC because of a mutual interest in politics, I don't see any way Elaine and I will end up near each other unless one of us -- well, really, unless she decides to pick up her whole life and start over by following me. So, best case scenario, as I see it, is maybe a visit once ever few months, as our budgets can accommodate. Plus, I doubt I'll be able to take any long vacations during my clerkship year. Oh yeah, and once I start my clerkship, she will be over 2000 miles away.
So, this is the question I put to all the folks who encouraged me to meet New Kate: Now what? My whole point in the earlier post was that I had to make an internal, educated, unscientific assessment of where New Kate fit on my sliding scale of risk v. reward. In short, I wouldn't have to be particularly taken by a girl to drive ten miles to meet her. But she would have to offer a little something more in order for me to go 100 miles to have a date. While I don't have anything against long-distance relationships in theory, in practice I'm not that eager to get into them. Part of it is my unwillingness to take relationship risks, and part of it is my conclusion that I don't want a high-maintenance girlfriend. One I have to fly 2000 miles to see is, for me, by definition, high maintenance.
But apparently I'm insane, according to virtually all the comments I got back in January. No one appeared to think it was a big deal at all to travel cross-continent for dinner. So, I'm curious: At what point does it become a big deal, or at least not worth the chance of getting another dinner date every three months? Does a 2000-mile trip and a Customs inspection change things?
I'm not looking for permission to back out of this. We're not even at the point of making dinner date plans. I guess I would just like some acknowledgement that the calculus might be changed in this circumstance. I will admit that I would take that as a vindication of my earlier stance that everyone's personal "too far away/don't like her enough" point is different, and New Kate was simply beyond mine. I look forward to any thoughts you have to offer, and I'm sure I'll end up expounding on this in return. Thanks.
Wednesday, May 12, 2004
I saw this post on Southern Appeal, saying that John Kerry and/or Tom Daschle would "lose the war on terror." Here's my question: How would we know?
I had been meaning to ask this even before I saw the SA post, but here's what I'm trying to figure out, two and a half years into the war on terror. So, if the President is reading this, I'd appreciate an answer. How would we know if we've "won" the war on terror? Is it possible to win it? Or does victory mean something more like continuing to fight vigilantly forever? Is it any more winnable than the wars on povery or drugs? Does the President ever envision a day when a President stands in front of Congress and say, "We won. It's over"? If so, what tangible, actual things have to happen first? What are the benchmarks for winning? I won't even ask how far in the future the President thinks that "Mission Accomplished" banner will be unfurled. But does he think it will ever happen? Does he think it will or can happen during his term in office, presuming he gets another four years?
I don't know what the answers to these questions are, and I don't know if there is just one right answer. But I'd sure like to know what the President (and for that matter, John Kerry) thinks about them.
Monday, May 10, 2004
This is a post I've been meaning to write for a while. To some extent, it's just a venting of some peeves of mine. Quite clearly, I don't speak on behalf of anyone else, most certainly including the judges I work for. And I don't speak based on years of experience in appellate litigation. I'm sure that judges or experienced litigators would have a very different Top Ten list. I'm sure that even other clerks would have different pieces of advice. After all, I didn't send out an elaborate survey of my colleagues; these are merely ten things that came quickly to mind, although my guess is that some of these gripes are universal. So, with that caveat/disclaimer, take these for what they're worth.
1. Don't forget the basics. I'm not going to spend much time talking about the simple things that you already ought to know. But remember that "spellcheck" does not equal "proofread." Be sure to follow all the court's rules about the form of briefs and appendices. Be meticulous in citing to the record (that means do it, and be accurate about it). Also, "know the record cold," as they say. Know what your client wants and needs and keep the client informed. Be sure you know exactly what you're asking for. I heard a lawyer in a recent argument in a habeas case ask the court to "reverse the [State] Supreme Court decision." Well, I know that granting the writ would have that practical effect, but the precise relief he was seeking was a reversal of the federal district court decision denying habeas relief. The judges didn't say anything, but I know they caught it if I did. How much credibility did this guy lose five seconds into his argument?
2. Don't assume we know as much about the case as you do. This is a biggie for me. I have read way too many briefs that start out with something like, "The district court erred in the March 3 hearing when it failed to give proper weight to the Jones affidavit." Whoa, now. Back up. First, who are you, who did you sue, why, what was the hearing about, and who the heck is Jones? The reason that most courts require briefs to start with a "statement of the case" and a "statement of facts" before the "argument" section is so they can be somewhat informed by the time they get to the finer points of your argument. So don't load your argument into these opening sections; the court gives you a whole section just for that. In most cases, the first thing I pick up is the appellant's brief. But far too often attorneys treat the brief on appeal like it is simply the next filing in the district court, where there would be some familiarity with things by this point. In fact, these opening briefs look a lot like a standard reply brief, which dispenses with a lot of the how-we-got-here stuff and goes straight to attacking the appellee's points. It's disconcerting. It's like watching an oral argument in a case you know nothing about. After a few minutes you pick up a general idea of what's going on, but it's not the best way to learn about it. Note that the risk of doing this is likely smaller if different people handle the trial and appeal, although I can't say whether that's best overall, and in some cases isn't even possible (solo practitioners, for example). At a minimum, remember that your brief on appeal is quite often the first thing a clerk or judge will see about the case, and it's worth it to imagine how it sounds to someone in that position.
3. Don't forget the standard of review. This probably ought to be in the "basics" section, but I see a lot of attorneys mess it up. The tendency, I think, is to argue that the district judge was wrong, and that should be enough to send it back. But in lots of cases, that's not true. I think one could argue that there are institutional biases in favor of affirming the lower courts, even when the standard of review is de novo, but I'm not going to get into that. But if the standard of review is abuse of discretion, an appellate judge could subjectively think the district judge erred, but as long as the decision is one the district court is entitled to make, it should stand. So you have to argue that the judge was really wrong. And if you didn't raise an objection in the district court, and have to rely on plain error, you don't get a reversal unless the judge erred, the error was "plain," the error effected your client's substantial rights, and the error "seriously effects the fairness, integrity, or public reputation" of the proceeding. (That may not be an exact quote from Olano, 507 U.S. 725, but that's the gist of it.) And don't get me started on the hurdles in habeas cases. My point is that just saying the lower court was wrong often isn't enough. I can't imagine trying to explain this to a client: "The good news is the appeals court agreed with us that the trial judge screwed up. The bad news is that they said he didn't screw up bad enough to make him do it again."
4. Don't overstate the case. This case probably isn't the worst example of anything. Using a bunch of exclamation points is unlikely to make us think so! I realize that this is a good example of how I'm not viewing this from the perspective of someone who is duty-bound to "zealously advocate." And hey, I guess logic requires one case, somewhere, to actually be the very worst. And I recognize that slippery slopes exist in some circumstances. But I tend to see this sort of argument when the facts are good but the law is bad for you. Fourth Amendment cases come to mind, because you might have the police acting a little shady, but thanks to all sorts of police-friendly jurisprudence, you lose. So this case becomes the precipice on which a free society teeters.
I've seen opinions in just the last week or so which characterized a party's position as "astonishingly broad" or "unhesitatingly" rejected an argument. I understand that there are cases where the best argument you can make on appeal is for an astonishing change in the law. But my advice is to think long and hard before deciding to go that route. The easiest way to win is to make the judges think there is nothing remarkable about the case, and that the law clearly favors your side. (It's not the only way to win, but I do think it's the easiest.)
5. Don't say a case stands for something it doesn't. If I wanted to take the time, I could provide lots of links to cases where attorneys have gotten in hot water for misrepresenting cases they cite. I had a case not long ago in which a brief read "Jones said that 'the sky is green.'" I thought, Wow, I must have been misreading Jones for a long time, so I went to the cite, and saw, "Jones argues that the sky is green. We disagree." OK, so it wasn't something like the color if the sky; if memory serves, it was a Sixth Amendment argument. But I was pretty amazed that someone would lift something that blatantly out of context and expect to get away with it. So the advice is, Don't misrepresent, because someone will actually read the case.
6. Don't worry about citation generally. (when I started this post, some of my "don'ts" were sarcastic) Not only should you make sure that the cases you cite say what you say they say, but please provide pinpoint cites. When you cite to the record (which you will do), be clear and consistent. There's no need to cite something as "Defendant's Motion for Summary Judgment, Exhibit H, at page 4, line 2" if you can just say "J.A. 123." I don't have any idea how much time and effort and negotiation went into the production of the Joint Appendix, and I don't care. I'm glad that it comes to me as a single document containing everything I need to know. I don't pay any attention to the page numbers of the documents in it, so just cite to the JA. And, of course, don't cite to things that aren't in it unless you need to get into a whole thing about supplementing the record on appeal. As for other cites, you don't have to conform to precise Bluebook standards (or whatever other style manual the court prefers) unless the court is a real stickler about it (like the Supreme Court, I gather), but your cites should make sense. Consistency is key here. And, there are some universally-accepted standards for common citations, so use those. When in doubt, cite the way the court does in its opinions.
7. Don't argue like you're arguing to a jury. This goes for oral argument as well as briefs. I read a lot of briefs that sound as if the lawyer was pacing in his or her office, expounding into a dictating machine or something. I tend to think that jury trials and appellate arguments are awfully different beasts. But even if the same person can be good at both, the same types of arguments won't often work in both settings. (Part of this is the standard of review issue.) Not having any experience at the trial level, it's hard for me to offer more detailed examples, but if the "argument" section of your brief goes on for ten pages of trying to convince the reader that whatever the other party did was so terrible, and your client is so sympathetic, but you don't have citations to anything...that's a jury argument, not an appellate argument.
8. Don't say "I wasn't the attorney at trial." So now I've gone on and on about how you need to treat this like a whole new ballgame, distinct in many ways from the trial, and now I change tacks. This is a real peeve of judges at oral argument. They ask a question about something that happened -- whether an objection was lodged, or whether the judge ruled on an objection, or what the lawyer's "trial tactic" was, and the appellate advocate says he or she wasn't there. The best response I heard to this prevarication was this icy rejoinder from a judge: "Well, neither were we."
Obviously, you don't want to give the court the wrong impression or end up conceding something you shouldn't. So it's perfectly legitimate to let the court know that someone else handled the trial. But don't just leave it there. Don't say you weren't there and act as if that means the question is just one of life's great unanswerable mysteries. Don't use it as a cop-out. Don't ask for a reversal based on a faulty ruling on an objection without knowing whether or not the trial attorney preserved the issue for appeal. The best thing to do is to say you weren't there, and you don't know the answer, but even if the wrong thing happened at trial, you should win on appeal anyway, and then explain why. Often, though, I suspect the "wasn't there" dodge means "I don't know the record as well as I should."
9. Don't throw in "kitchen sink" arguments. Ken Lammers made this point yesterday. There are exceptions. Sometimes, one of your dozen arguments has some merit. Sometimes, a case really does have seven or eight winning arguments. But I've got to admit that Ken's source is right when he says that briefs with several arguments do not make a "favorable initial impression" and create an "extreme disadvantage." I know it's not fair, but it's the truth. Part of an appellate advocate's job, though, needs to be winnowing the potential claims to winnable claims. As with some of the other points I've made, perhaps it's best to keep in mind that the clerk or judge who reads the brief will have very little motivation to think that your case is anything special, anything different from pretty much every other case. If you can't make an argument to the contrary, maybe your argument should be that this is an easy case that slipped through the cracks.
10. Don't cite unpublished opinions. :)
As promised, here is the post on smoking a Texas-style brisket on your backyard grill. If I leave any questions unanswered (or if anything is unclear), please use the comments section.
Cooking a brisket on the backyard grill requires dedication. It requires a fairly constant, but low, temperature, and it requires a lot of time. "Low and Slow" - this phrase will become your mantra. If you are not prepared to spend the better part of a day monitoring your grill, then this is not the project for you. Please note that monitoring the grill does not require that you abstain from all other activity. In fact, polishing off several beers is the ideal activity to pair with barbequing a brisket.
Note that I assume the reader has a basic familiarity with his or her backyard grill, how to clean it, how to start a fire, how to regulate its cooking temperature with the vents, etc.
Also note that I have included two recipes - one for the dry rub and the other for barbeque sauce - at the end of the post.
UPDATE: Before you get discouraged by the length of this post or the length of time needed to smoke a brisket, please note that I have included a section on how to speed up the cooking process (so that it takes only about 7 hours, not 18). To find it, just scroll down until you see the green header entitled "So you don't have 18 hours to spare? That's okay."
The lowdown on brisket
Brisket is cut from the breast section of a side of beef. There is one brisket per side of beef. A whole brisket can range in size from about 8 to 16 pounds. The briskets in the 10 pound range are the best size for preparing at home.
The brisket is made up of two sections: the flat and the point. The flat is the larger section. It is wide, flat (duh) and can be served sliced on a sandwich or sliced and piled high on the plate. The point section overlaps the flat. It is fattier and contains a great deal of connective tissue. It tends not to slice as well as the flat. The point is usually served chopped. Oh, and the point section is pointy (but I bet you already knew that).
Brisket is a tough cut of meat and it has to be cooked past well done in order to be edible. Brisket needs to reach an internal temperature of at least 180 degrees F and somewhere closer to 210 degrees is best. Otherwise, it is a chewy inedible abomination. That sounds crazy but it's true. The reason is that the brisket is full of tough connective tissue (collagen). You must cook the meat at a high enough temperature so that the collagen which runs throughout the muscle converts to gelatin. Collagen begins to convert to gelatin at around 130 degrees but this conversion is much more rapid at around 180-200 degrees. "Low and slow" cooking - 225-250 degrees for several hours - is the ideal method to facilitate this conversion.
Preparing the meat
When purchasing a brisket, look for one in the 8-12 pound range. Anything larger will likely be too large to manage in a standard backyard grill. When you get the brisket home, rinse it with cool water, pat it dry with paper towels, and trim the large section of fat over the point. Do not trim it completely off - you need to leave some fat to keep the meat moist through the long cooking process. Just trim the fat to an even 1/8 to 1/4 inch layer. Next, apply a small amount of extra virgin olive oil to your hands and then rub the dry rub (see recipe, below) into the meat.* Really massage the rub into the meat ("rub" - get it?). Once you have a good coat of dry rub on the meat, wrap it tightly in plastic wrap and place it on a baking sheet in the refrigerator. Let it sit for at least 2 hours, preferably 24 hours (or up to 2 days).
*There are some "purists" who use only salt and pepper as a rub. If you want to be a snob about it, then go right ahead. But it is not heresy to use a dry rub on brisket - not like adding beans to chili.Preparing the grill
When you purchase the brisket make sure you pick up some wood chunks to add smoke to your fire and flavor to the meat. Mesquite is the preferred wood. If you cannot find mesquite chunks I suppose you can use hickory. Honestly, though, find some mesquite. Hell, even the Wal-Mart carries mesquite chunks.
Before firing up the grill, you must attend to several other items. First, the wood chunks need to be thoroughly soaked in water (otherwise they will burn). Put several handfuls of wood chunks in a bucket and cover them in water for at least an hour. I usually do this step first and then remove the brisket from the refrigerator. The wood chunks soak while the brisket comes up to room temperature. In the meantime, fill your cooler, grab your lawn chair and find a comfortable place to sit and watch the grill.
You also need to assemble the rest of your cooking tools. For charcoal grills, this includes a chimney starter, charcoal (I like to use the all natural wood charcoal, but remember that it burns hotter than charcoal briquettes), meat thermometer (bonus points if your grill is also equipped with a thermometer), and heat resistant gloves (welder's gloves are nice for this purpose). For gas grills, obviously you can omit the charcoal and chimney starter. Let me say that while a gas grill will work for barbequing a brisket, it is not the ideal tool for such a purpose. However, if gas is what you have, then use it. Just consult your grill instructions on smoking wood chips and adjust accordingly.
Once your equipment is assembled, fill the chimney starter about 1/2 to 3/4 with coals and start your fire. Do not use lighter fluid. Not now, not ever. Once the coals are ready, dump the chimney and arrange the coals in a pile on one side of the grill. Place the cooking grate in place, clean it, and cover the grill for about five minutes. Meanwhile, drain about a handful of the wood chunks, unwrap the brisket, and bring it outside. Uncover the grill and (wearing your gloves) lift the cooking grate so that you can place the wood chunks near the coals. Return the grate to its position and then place the brisket (fat layer facing up) on the side of the grill opposite of the coals. Close the grill and make sure that the vent is above the meat. This will help draw the smoke from the wood through the meat.
Smoking a brisket: An all day affair
Now for the hard part. If you have a thermometer that measures the internal temperature of the grill, adjust your vents to maintain a cooking temperature of around 225-250 degrees (the top vent will probably be about halfway closed). If you do not have a thermometer, you can guesstimate the temperature of the grill by holding your hand 2-3 inches over the cooking grate above the coals and counting how many seconds it takes for the heat to force you to move your hand. Something in the 8-9 second range is a rough approximation for the right temperature. Really, though, a thermometer is of great value in this endeavor. The key now is to maintain this temperature. This involves keeping the lid closed! Don't open the grill any more than is absolutely necessary or you will create a lot of problems. Of course, you will need to add coals to the fire occasionally,** but only open the lid for this purpose until the brisket is done. Well, you can open the lid to turn the meat, at the half way point in the cooking process, and at then once again at the three-quarter mark. The brisket needs to cook approximately 1 1/2 hours per pound (the number of beers per pound of brisket can vary enormously from one cook to another). This can vary depending on weather conditions, how many times you opened the grill, and, of course, the thickness and shape of the meat. A 10 pound brisket will take around 15 hours to cook. A 12 pounder will take about 18 hours. As I said, this takes dedication.
**Use the chimney starter to keep a small supply of coals ready to add to the fire. Place the chimney on a sturdy heat resistant surface (a large metal bucket turned upside down works well - don't use the driveway though because the fire will leave its mark on the concrete), fill it again about 1/2 full and light it. Remember though that the chimney is still hot from the original coals, so use those gloves. Be sparing, but every hour to two hours you may need to add additional coals to maintain a steady 225-250 degrees in the grill. You can add some additional wood chunks when you add the coals, but be sure that the wood chunks are well soaked with water.When a meat thermometer gives you a temperature reading of 185-205 degrees from the flat end, you are done. The brisket should have a dark thick crust. It will perhaps look burned. Do not be alarmed.
Using your gloves, remove the brisket to a baking sheet or cutting board, loosely tent it with aluminum foil, and let it rest for at least 30 minutes. During this time, the temperature will climb another 5 or so degrees and the juices will redistribute throughout the meat. Do not omit this step.
Serving the brisket: And now, I will incise
Once the meat has rested, separate the point end from the flat end by cutting through the fat layer that separates the two sections (it will be obvious). The grains of the two sections run in opposite directions and so they must be sliced separately. Slice the flat end on a diagonal in 1/4 to 1/2 inch think slices, pile it high, and serve. The point end does not slice quite as nicely as the flat, so if presentation is important, your best bet is to chop the point end for sandwiches. I slice it all. If the point slices fall apart no one will really complain.
Side dishes can include just about anything. I favor potato salad, cole slaw, pinto beans, and cobbler (recipes for another day). And, of course, barbeque sauce (recipe below). Again, purists may berate you for serving a sauce with your brisket - it masks the flavor you worked so hard to achieve with the smoking process, etc. - but if you like barbeque sauce then just ignore them.
So you don't have 18 hours to spare? That's okay.
Purists can ignore this paragraph, but if you don't happen to have 18 hours to devote to cooking one piece of meat, then you can start it on the grill and finish it in the oven. Proceed as described above, but after three hours of smoking on the grill, remove the brisket from the grill and place on a large work surface. Use 2 3-foot pieces of aluminum foil (fold them together on a seam to make one large 4-foot x 3-foot piece) to wrap the brisket. Make sure it is sealed, then place it in a roasting pan or other suitable implement and cook at 300 degrees for about 3 more hours. Three hours on the grill gives the meat plenty of opportunity to pick up the smoke flavor and develop a crisp outer crust. Three hours in the oven gives you plenty of time to prepare the fixin's - potato salad, beans, cole slaw, cocktails, etc.
There are many advantages to this method, primarily that the meat cooks faster. Another advantage is that you do not have to monitor the brisket once it goes into the oven. A final advantage is that you can reserve the collected juice from the aluminum packet and add some of it to the barbeque sauce (defat the drippings first, though). Just be careful when you open the foil packet. The escaping steam and juices can cause burns.
Final thoughts on backyard brisket
I don't use a marinade, but many people do use Dr. Pepper, or beer, or lime juice mixed with the rub to form a paste. They use this to coat the meat before placing it in the refrigerator. The acid from the soda or lime juice can help break down some of the connective tissue. My dad does this, many other people do as well. I don't do it, but you certainly are welcome to try it. Ditto on mops or marinades brushed on during the cooking process. Basting just doesn't add enough flavor or moisture for me to worry about it. The wood smoke adds the flavor, the fat keeps the meat tender, and I avoid a lot of fire maintenance issues by leaving the lid closed. Baste if you like, but don't use a sugar or tomato-based sauce or you will end up with a charred, tasteless crust of burned sauce on the outside of the meat.
Are we done yet?
So there you have it. Fitz-Hume's take on Texas-style barbeque brisket prepared on the backyard grill. It is a labor-intensive process to be sure, but a labor of love that pays off at the end of the day.
I have included below the recipes for the dry rub and barbeque sauce that I use. I don't claim that these are authentic but I guarantee they are delicious. However, feel free to substitute your own.
- - -
Texas Dry Rub
Use on ribs and brisket. This rub recipe is from Weber. Incidentally, so is my grill (and so is the grill of my dreams).
2 tablespoons paprika
2 tablespoons light brown sugar
1 tablespoon chili powder
1 tablespoon kosher salt
1 tablespoon ground black pepper
2 teaspoons of granulated garlic (NOT garlic powder)
2 teaspoons of granulated onion
1 teaspoon of ground cumin (toast the whole cumin seeds and then grind them yourself for best results)
Combine all the ingredients. Store in an airtight container.
- - -
I do not claim that this is the definitive barbeque sauce. Nor do I claim that it is strictly speaking an authentic Texas-style barbeque sauce. However, it is the sauce that I serve with barbequed brisket, ribs, chicken, you name it. I don't remember where I obtained this recipe but I have used it for a long time and with great success.
10 cloves of roasted garlic (chop the pointy end off of a garlic bulb, and roast the bulb at 350 degrees F for about 30 minutes)
2 cups of ketchup (don't use Heinz or the terrorists will win)
2 stalks of celery, chopped
1 medium-sized yellow onion, chopped
1 cup of water*
1/2 cup of melted butter
1/2 cup of worchestire sauce
1/2 cup of apple cider vinegar
1/2 cup of brown sugar
3 tablespoons of chili powder
2 teaspoons of instant coffee grounds (trust me on this)
1/2 teaspoon of cayenne
1/2 teaspoon of ground red pepper
1/2 teaspoon of ground cloves
1/2 teaspoon of kosher salt
Combine all the ingredients in a sauce pan. Slowly bring the sauce to a boil (medium heat). Reduce the heat and simmer for 20 minutes. Let the sauce cool. Process until smooth (you may need to do this in batches if you have a small processor). Reheat to serve.
*If you are preparing a brisket and you finish the brisket in the oven, the water in this recipe can be supplemented (or replaced) with up to 1 cup of the drippings from the meat (be sure to defat the drippings first).Whew! This turned out to be one long post. If you have the patience to read this whole post, you have the patience to cook a brisket. Good luck!
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