Begging The Question

Saturday, June 19, 2004

Making your fantasies come true
Not being a lawyer, I am probably late to the party on this. Just in case anyone else out there hasn't seen this, fantasy sports and games have now reached the Supreme Court.

I can just see the headlines now. "Supreme court judge accused of changing their opinion to cover the spread for their fantasy team." And you though the Scalia/Cheney controversy was big.



Friday, June 18, 2004

An open letter
(simulposted here)

Dear Fellow Gym Members--

I am writing this letter to explain a few basic ideas that seem to have escaped all of you. My point is not to complain as much as it is to inform.

First of all, Mr. Weightlifting Belt Wearer. Now, I know that as soon as you bought this membership, you drove your Miata over to Target and got weightlifting gloves. While you were comparing gloves, you noticed that wide leather belt hanging there. "I'm going to be lifting really heavy weights," you told yourself. "I need something like that to make my workout safer. Besides, I'm gonna be HUGE and HUGE guys need such things." I understand all of this. However, what I don't understand is why you wear that belt around THE ENTIRE TIME YOU ARE IN THE GYM! That you stand in front of the mirror, curling the 25lb dumbbells with that belt cinched tight makes no sense. Not only is it not helping you, but it actually detracting from your workout. Take it off... force your body to use the small muscles around your abs and lower back to stabilize you on lifts. Hell, go one step further--throw the belt away. Trust me, you are nowhere near needing it.

Second, Ms. Social Scene. Yes, it's really great that you know all the staff members by name and have little inside jokes with them. It's just as great that you know most of the guys working out and like to chat with them in the twenty minutes you seem to take between sets. However, what's not so great is that you are sitting on a bench that you aren't even using, just so you can break the concentration of the poor schmo on the next bench as he tries to lift. In case you hadn't noticed, there is actually a bar next door. If you really want to have a social outing, you should try going there. What you shouldn't do is talk to people while they are benching and monopolize equipment.

Third, Mr. Really Bad Form Guy. What muscle are you working with that barbell curl? If you said "bicep," then my follow-up question is this: Why are you using so much weight that you have to violently throw your shoulders back and your hips forward for every rep? But it's more than just the curls. You lift your head off the bench at the bottom of every bench press rep for no reason at all. You roll your shoulders too much during shrugs. You throw on a belt then overload the squat bar, begging your back to explode. You rock back for momentum during lat pulls. Why? Why not simply cut back the weight a little bit and focus on your form? I assume you are trying to make gains and are not simply at the gym to create business for your chiropractor.

Fourth, Mr. Way Too Much Cologne. Put down the Brut and back slowly away from the bottle. And, for the love of Pete, stop picking the treadmill that's right in front of the fan.

Finally, Captain Sweatmonger. Be honest with yourself... you break a light sweat checking the mail, don't you? Well, when you are working out, that sweating reaches El Paso like proportions. Please, do everyone a favor and bring a towel so you can wipe down the equipment when you are done. Please.

Like I said, my purpose was not to complain, just to make things more pleasant for everyone. Together, we can create a better gym.

Sincerely,
SJ





Random thought of the Day
Is linking to your own blog home page in a post the equivalent of referring to yourself in the third person?

Follow up Random thought:
Why does the Blogger spell check dictionary not contain the word "blog"?





Primary Sources
Scott over at Life, Law, Libido had to opportunity to sit in on the 9/11 Commission hearings yesterday. He reports on some very interesting conclusions presented by the Commission staff, chief among them that if the U.S. government had had a day of warning the attacks might still have been successful. In contrast, General Eberhart, the commander of NORAD, testified that if the various government agencies had communicated effectively that we could have shot down all four hijacked planes with time to spare.

Scott's first-hand account of the hearing is well done and informative. Read the whole post here.





The BTQ Review: Stiff
In this edition of our occasional feature, The BTQ Review, I present Stiff: The Curious Lives of Human Cadavers, by Mary Roach. I think it will be quickly apparent whether this is the kind of book you will want to read.

This is a book about what happens to our bodies after we die. And it's damn funny. Really.

It's also incredibly educational, but presented in such a lively and readable way that you feel like you can actually begin to understand all the biology and chemistry and pathology and theology involved. The subtitle could just as easily be "a cultural anthropology of how we deal with death," because how we handle cadavers says a lot about what we think is important -- in the eternal sense.

An easy example of this is ancient Egyptian mummification, which involved removing the brain via the nostrils because one wouldn't be needing it, but hanging on to the liver, presumably because the afterlife had an open bar.

From that nut King Tut through the middle ages and into the modern era of scientific achievement, Roach traces the history of how people have studied, cut up, buried, dug up, stolen, and examined, dead bodies. The book is broken down by the various aspects of this inquiry. There's a chapter on medical school anatomy classes and donated bodies (including the history of pathology lessons and dissection). She looks at decay at the famous Body Farm (more precisely, the Forensic Anthropology Center at the University of Tennessee).

There's some more unusual stuff, too, like experiments on cadavers in a crucifix position to see how a body would be nailed up there (and if the blood flow would match the marks on the Shroud of Turin. (Note: there are a lot of websites that claim to have the definitive word on the shroud; I endorse none of them, including the linked one.) Also, experiments on -- get this -- human head transplants. Or turning bodies into compost, for the good of the environment (it's big in Sweden). Oh, yeah, and medicinal cannibalism. The bottom line: If you think the things they do on Six Feet Under is the strangest stuff you can do to a cadaver, you need to read this book. (But Roach also discusses good old-fashioned embalming and cremation, so she covers that aspect of things, too.)

Two areas of Roach's book intrigued me a great deal. One was a chapter, in the context of organ harvesting of brain-dead but heart-beating patients, discussing various scientific attempts to locate the seat of the soul. The theological and ethical issues presented there were very interesting, but really beyond the scope of what I can write about here.

The other part I liked a lot was a group of chapters about the use of cadavers as crash test dummies, their use in ballistic and explosive tests for the military and police, and their use to explore the causes of plane crashes when the "black box" doesn't help. Taking a donated body, cutting off the foot, and using it to test a new boot against a land mine gets controversial if the donor thought his body was going to a medical school for dissection.

One might certainly say (and Roach amply demonstrates) that whatever happens to a cadaver ends up being pretty ugly. Even embalmed bodies in airtight coffins eventually decompose. So, does it make a difference if one is cut up over the course of a semester, blown to bits in a split second by a bomb, thrown out of an airplane, used for compost, burned, or whatever else somebody might dream up?

The easy answer, for lawyers at least (speaking of brain-dead pasty lifeless husks), is "informed consent." It turns out that most people who donate their bodies don't really want to know all the gory details of what will happen. But if they had to be told that they might get drafted for "Aaarmy training" and end up "Blown up!" like Sgt. Hulka in Stripes, maybe they wouldn't donate.

The trickier issue is our perfectly natural inclination to treat cadavers like people. This tendency underlies the whole book, and it's something I found myself grappling with well after I finished reading. Medical students often name the cadavers they learn on in gross anatomy labs, and recently, many schools have taken to holding memorial services as well. A lab worker pats a body on the leg, as if to comfort it. Roach herself flinches when she sees an embalmer cut a carotid artery to drain blood, and finds herself surprised because she expected the cadaver to react. Such a feeling is natural, and human, and humane. But unless we could affect a certain amount of detachment, we'd end up stuffing our relatives and mounting them in our living rooms...A Lenin's tomb in every room.

This is a big issue, and Roach wisely doesn't attempt to resolve it. (I'll leave for you her decision about what she wants done with her own body.) A nice example is the head-transplant issue. Doctors are working on this for, among others, quadriplegics (either by figuring out a way to reconnect severed sinful cords, or just so that the quadriplegic can get new healthy organs and extend the lifespan). Most people, in theory, don't have a problem with the transplantation of individual organs. If someone is walking around with my kidney or lung, I doubt my family would think that's "me" surrounded by someone else's body. But if they lop off my head and attach my whole body to, say, Christopher Reeve, I think a lot of people would think it's me, or most of me anyway. (And sadly for Reeve, I'm never mistaken for the Man of Steel.)

So, what are we, boiled to our essence and elements? (Uh, yes, there's some boiling in this book.) What of us remains after death? What is a body, really? What is okay to do to it, and what is it not okay to do? If, as so many reviewers label it, it's "irreverent" to talk about corpses the way Roach does, does that necessarily assume corpses should be revered in the first place? Why is that? (I should note, in case it's not clear, that while Roach's writing is enjoyable and often very funny, she is clearly respectful of her subject.)

My guess is that you either find all this stuff "icky" and have no desire to read Stiff, or like me, you're fascinated by it. If it's the former, I'm actually a little surprised you're still reading. But if it's the latter, I think you will find Roach's book informative and entertaining. I have no hesitation awarding it BTQ's highest marks, a full six pack.
Won't you gentlemen have six Pepsis?



Thursday, June 17, 2004

"Always remember: Your bones will not break in a bobsled. No, no, no. They shatter."
Sometimes, I fall ass-backwards into the coolest things. For example, I bought my ticket to the Rangers/Yankees game last month about a week before A-Rod was traded. That event turned a regular ol' game into a media frenzy and an overall awesome experience.

As another example, my third day of undergrad, they had an activities fair, where all the student groups were out in the Quad and we could wander around from booth to booth. At one point, I put my name on a list for some concert series. Two months later, I get a call, asking me if I would like to work at The Mavericks and Junior Brown concert. I agreed and, when I showed up, was told that my job would be to sit on the stage during the show and then check backstage passes afterwards. I met both bands, hung out with them after the concert, and Raul Malo's mom made me a plate of food from the band's dressing room.

So what? Well, that was a segue into this... I picked up Mrs. Johnson from work today about 15 minutes early because she had a doctor's appointment. We drove the ten blocks over to her doc and, as we were parking, noticed that a long line of police cars was blocking off intersections. We exited the car and started walking when it suddenly dawned on her (because I am a clueless idiot) that this was the Olympic Torch parade. We found a spot right on the street and got to watch some random blond woman carry the same torch that will light the flame in Athens. It was one of those weird moments that you know you probably won't ever experience again, yet it doesn't seem all that important as it's happening. Still, very cool and very unexpected.

---

As a somewhat related aside, I know there are a lot of people who really don't give a damn about the Olympic Games for one reason or another. Not me. I love the Olympics. Always have. I love all the random memories... Ben Johnson and the steroid scandal, the Atlanta bombing, Derek Redmond being helped across the line by his father after tearing his hamstring, Michael Johnson's gold shoes, Mark Spitz putting on a clinic... I could go on. I also love the sports that you only really get to see during the Olympics, such as curling (a fine example of Scottish athletic prowess), javelin, and steeplechase ("How can we make long distance running more exciting? By putting hurdles and puddles in the way!"). Probably more than anything, though, I love the medal ceremony when someone breaks down in tears at the sound of their own national anthem.



Wednesday, June 16, 2004

Choose Your Own Adventure
I had Chinese food for lunch today, and contained in my take-out bag were three, count 'em, 3! fortune cookies. Naturally I will open all three so that I can choose the best fortune.

Fortune #1: "Your future will be happy and productive." Not bad. In fact, that's pretty hard to beat. Still, I'd like to see what's behind door #2. And door #3.

Fortune #2: "Give a kiss to the person who sits next to you." Not bad either. And it's tempting to follow this advice, since I sit next to a young attractive blond. However, she is not the young attractive blond to whom I am married (I think I speak for Soupie and me when I say that "for a couple of Irishmen we sure married up."). In the final analysis, I don't think it would be wise to follow this advice. Moving on.

Fortune #3: "Nothing in the world is accomplished without passion." I guess that's true, but then again I see John Kerry has been a senator for 19 years and is now his party's nominee for President. Is there a less passionate and yet still accomplished person in the world? Hmm. Oh yes, Al Gore circa 1992-2000. The Dalai Lama doesn't seem very passionate either. Neither does the Pope. Yet both are relatively successful in their chosen fields. Still, I think there is some truth to this fortune. Perhaps it is more a message to me that I should follow my passions than it is a statement of universal truth.

Having read all the choices, and noting that choice number two - "turn to page 57" - results in a tragic and swift end for our hero, I think I will settle on Fortune #4 and play the lotto numbers on the back of Fortune #3. 12,18,19,33,36,38. I mean, come on! The powerball lotto is $100 million! That's the kind of fortune I'm talkin' about.





It allows me to seriously aggravate a situation without changing the course of history. It also stings like a bitch.
Not only have we brought in ringers (see here and here) for the crucial blogosphere sweeps season, but we have added some new functions (functionality???) to BTQ that we hope you the reader will find useful. Let's go through the changes one by one:
- A Google search bar has been added to the right column. Scroll down past the disclaimer. See it? The search bar will allow you to search the entire web (a/k/a "the internet" a/k/a "son of Gore" a/k/a "Peanut"). You may also confine your search to this site alone. That's right, that egoist Mr. Poon can search BTQ for his name while never leaving BTQ. Convenient, isn't it? Incidentally, a search of BTQ for "Mr. P" and "Mr. Poon" reveals that his name appears about 27 times on our blog. Number 27 in your programs, ladies and gents, but number one in our hearts. He's 6'5", with the afro 6'9"...

- Our RSS / XML feeds have been updated. You have several options to choose from (I think they are all really the same, but I know almost nothing about RSS /XML feeds). Again, glance over at the right column. See the pretty links? If you read BTQ via an RSS aggregator, I hope these links work for you. If not, let me know (btqblog-AT-hotmail-DOT-com).

- I have posted a link to my Kinja digest. This link allows me (and now you) to check all of the blogs in my blogroll at once. Just click on the link and you will not have to surf over to NRO, Iraq Now, Southern Appeal, etc. This is not intended to replace the blogroll, but it does seem like a handy tool for quickly checking my favorite blogs for new content.
So, that pretty much sums up the changes. I hope you enjoy BTQ v.2.1. If you find any bugs, let me know. If the changes suck, let me know. If you know where the title to this post came from, let me know.





On this ship you are to refer to me as "idiot" not "you captain!" I mean . . . you know what I mean.
I was going to remain happily anonymous, but then Soupie went and ruined it by introducing himself. So now I feel compelled to do the same, though I won't feel guilty about stealing the format.

Who the hell are you?
You mean other than spellchecker's worst nightmare? I'm a farmboy from Montana who snuck into a good east coast university before migrating south to Texas. I am engaged to a smart pretty girl, and am currently seeking my fortune at a medical software company.

Why don't you have your own blog?
I'm lazy.

Is Sebastian Haff really your real name?
Um, no. Diehard Bruce Campbell fans will get the reference.

How would you describe your blogging style?
Having never blogged before, it's tough to say. My guess would be: the politics of F-H, the humor of Milbarge, the intelligence of Jessica Simpson, and the eloquence of Anna Nicole. Not having a law background (other than sitting in the defendant's chair), my posts will probly consist of news, politics, movies, and whatever good ideas I can steal from other people.

Why did they ask you to guest blog?
Two words. Plausible deniability. If I suck, M & F-H can come back and apologize saying they had no idea how horrible I would be since they had never seen me blog. If I'm great, they can take the credit for finding a diamond in the blog-o-sphere rough. BTQ doesn't believe in the No Win Scenario.

I will do my best to amuse and entertain.

Update: Wow. So this is what it's like to have your name up in lights.



Tuesday, June 15, 2004

Allow myself to introduce... myself.
Hi, all.

For the next few days, I will be dragging down the overall quality of BTQ. Therefore, I suppose we should get to know one another. Because I like lists and gimmicks, we'll do this as a FAQ-style column.

Who the hell are you?
My nom de blogge is Soupie Johnson and I run things over at Soupie's BBQ & Daycare. As previously stated, I am "rising 2L" (which sounds dirty, but isn't) at a law school in St. Louis, MO. Also, despite my best efforts to the contrary, I am married to an attractive and insanely patient woman.

"BBQ & Daycare"? What the hell is that about?!
Eh... it was a conversation I had with Larry over at Lonestar Expat about how there is really nothing tastier than deep fried baby. It's not all that funny in print, but, for some reason, it was hysterical live. Just ignore it and move on.

How would you describe your blogging style?
"Mediocre." How about "subpar"? Seriously, though... "style" is such a strong word and would imply that I have some sort of rhyme or reason to what I do. That would be a lie. I just kinda randomly post about sports (mainly baseball), movies, music, news, hot women, law school, BBQ, Texas, and anything else that pops into my head. As for my posting on here, I've decided that I will try to keep with the theme of the blog as best I can, so no rants about Barry Bonds and fewer pictures of half-naked women.

Why did they ask you to guest blog?
I'm really not sure. I imagine the conversation went something like this:
Milbarge: If we're both going to be out of town, we should probably get someone to cover the blog.
Fitz-Hume: True. How about Mr. Poon?
M: Nah, he's busy studying for the Bar and he's already guesting at Crescat.
F: Jeremy Blachman?
M: Already working on two blogs.
F: Who then?
M: Well, my friend Sea Bass would probably do it, but we should get one more.
F: You know, we should get someone piss-poor so that everyone is really excited when we get back.
M and F (in unison): SOUPIE!!!

So that's me in a nutshell. I feel closer to all of you already. And, to the owners of this fine blog, I give you this promise: I'll do my best to keep this thing from being shutdown by the FCC or Dept of Homeland Security.





Better late than never
I am sorry that have taken so long to post on this, but with my judge's retirement I have not had time to devote to BTQ. However, at the urging of my co-blogger, I have decided to make time to relay to you an abridged version of the story of my brother's return from Afghanistan.

To recap quickly, my brother is a specialist in the U.S. Army, and he is assigned to Alpha Company, 2-22 Battalion, 10th Mountain Division (Light) Infantry. His unit was deployed to Afghanistan in August of 2003. Previous posts about his activities in Afghanistan can be found here, here, here, and here.

Alpha and Bravo companies of the "Triple Deuce" returned to Ft. Drum, New York on May 7, 2004. They were originally scheduled to return on May 5th, but the commercial airliner chartered to bring them home developed a problem with the autopilot. The problem was that the autopilot would not disengage (putting the "auto" back into "autopilot" I guess). This necessitated an emergency landing in Ireland. The guys enjoyed a day and a half of drinking and carousing with the locals before two new planes were commandeered so that they could return to the U.S.

While the soldiers enjoyed the stay in Ireland, their families (including me) were stuck in Watertown, New York with a lot of free time and nothing to do. I decided to use some of my leisure time to visit our neighbor to the north. What a mistake that was. I survived the interrogation at the border, but I was not in Canada for more than half an hour before my car lurched violently off the road and the check engine light came on. Thirty minutes in Canada and my car decides to crap out. Great. This cut short my foray into the north country, as you might imagine.

[insert boring, rambling story about me paying out the wazoo for car repairs and then getting hammered Lonestar Expat-style here]

So, with the repairs (replaced the coils on 2 cylinders) complete, my drunken giddiness subsiding, and a renewed distaste for Canada, I got word that the guys would definitely be returning on Friday night. They did arrive, the ceremony went off without a hitch (the most moved I have ever been when singing the national anthem), and I got to see my brother. Not at the ceremony, though. He missed out on the ceremony because he was intimately involved in the search for a missing laser designator. I met up with him later and took him to dinner. A crappy dinner. At Applebees. I know he deserved better, but by 11pm in Watertown there just ain't nothin' open. It was beyond embarrassing. I just hope that I can make it up to him this weekend when he ventures south to join me at my humble abode.

Long story short, my brother made it home safely, if a bit late, I spent a crapload of money on my car, Canada sucks, Applebees sucks almost as much as Canada, but the men of the 10th Mountain Division were an inspiration. I found the motto of the "Triple Deuce" to be particularly inspirational: "Deeds. Not Words." They deserve our thanks and our respect. With their deeds they've more than earned it.





They must be having trouble getting gigs
For a variety of reasons, but mainly because Milbarge and I will only have limited opportunities to blog for the next two weeks, we have invited two gentlemen to join us as guest bloggers. No stop-gaps these two. No decoys. They are genuine GLG-20s. Please give a warm BTQ welcome to Soupie Johnson and Sebastian Haff.

Brief introductions (I'll let the guys fill in any blanks if they wish):

Soupie, a rising second-year law student, proprietor of the fine blog Soupie's BBQ & Daycare, and newly hired research assistant is an old hand at blogging.

Sebastian does not yet have his own blog, but he once organized an anti-Communist rally. He has made a valuable contribution to our meager effort through his frequent and frequently hilarious comments here.

We are honored that Soupie and Sebastian have agreed to join us. We trust that they will improve immeasurably your enjoyment of BTQ. So, without further ado, I give you Soupie Johnson and Sebastian Haff! *roar of the crowd*





What I've Been Missing
A few weeks ago, I discussed a near-miss encounter with a smiling young woman at the book store. I mentioned that I might post one of those "missed connection" ads in the local free weekly independent paper.

Well, the reason I got this idea was that I thought the paper ran those ads, and I was pretty sure I had seen a notice on the personals page about missed connection ads. But, I looked for a couple of weeks and didn't actually see any missed connections ads. So I figured they were sort of like ads where a man is seeking a woman for "friendship first": acceptable in theory, but never actually placed. Ultimately, I concluded that (a) I must have been mistaken that the paper ran missed connection ads, or (b) even if it did, they were so rare that no one would really think to look there upon having a close call -- it hadn't seeped into the public consciousness.

Well, lo and behold, I open this week's edition and there's a slew of missed connections ads. The paper must have been saving them up until they had a critical mass or something. But reading through them (nothing from Gal Smiley, by the way), I think something strange is afoot. Either my town is much wilder than I thought, or the paper is padding the ads to fill space.

Let's see if these sound realistic to you (some city-identifying details changed):
"Love of My Life"
You nibbled my neck at Tchotchke's a week ago but I was too drunk to remember to ask for your number.

"I Saw You Behind the Bar"
I couldn't help but notice the way you poured that beer!

"I Saw You"
You had on a blue/white striped shirt. You were kinda shy looking, so I'm giving you a shout out! Holla back!

"Lacy's"
You: At Naked Mondays at Lacy's [an adult novelty shop that, indeed, runs a "Naked Monday"] wearing a trench coat. Me: Curious about what's under the trench coat. Call me!

"Seen You Around"
You never have a frown. Bright as the sky, I never ask why. You make me smile. Please stay a while.

"Tried to Break the Ice"
We talked, I was a little nervous! Found out you were taken! Let me know if your situation changes!

"Drunk and Hot"
Last Friday you were drunk and passed out on someone's lawn on Park Street. I stopped and tried to help. You still want some water?

"Pig"
I saw you at Tchotchke's. You grabbed my butt and I told you if you did that again I'd kill you. You did. I need your address now.
And, interestingly, there were two ads extolling the appeal of a girl with bangs, which on certain girls I like.

Anyway, either the hapless schmoes of my city have no idea how to place a missed connection ad, or most of these are made up. (I'll note that there were several more which seemed fine.) Is the point of these things to establish the missed connection, or is it simply to get a bunch of "Oh, yeah, that musta been me!" responses? And what of an ad that is nothing more than an invitation for every bartender in the city to hit on you? Why not just take out a regular personal ad describing yourself and saying "I like tap jockeys"?

And if the paper was trying to prime the pump, shouldn't it have done a better job of giving exemplars? Maybe I'm the strange one, but these ads don't make any sense to me.





From "Superman III" to "Office Space" to...Ontario Tax Auctions?
Hey kids, if you're ever looking for a good way to illustrate the rules versus standards dichotomy, check out this neat story (link via Overlawyered).

A small town in Ontario put a lake-front lot up for auction to settle back taxes. Houses on the lake can go for $400,000 (or $250 American). Bidders were required to post at least 20% of the bid as a deposit. A guy named Frank Carrocci bid $21,000 and sent in a deposit of $5000.

Carrocci later found out he was the second-highest bidder. The high bidder had bid $22,100.99 and submitted a deposit of $4420.19. The math majors in the room might already be a step ahead of me here. Twenty percent of $22,100.99 is actually $4420.198.

Carrocci sued, arguing that the high bidder had failed to submit the required 20%, and was in fact short .008 cents. The city argued that it could accept the high bid because fractions of a cent aren't recognized legal tender and that therefore the high bidder was not required to pay them, or more precisely, round up.

The rules argument: If the law says 20%, then 20% is what you have to pay, even if the only way to accomplish that is to pay a fraction higher than 20%, and even if that fraction is only .002 cents.

The standards argument: The purpose of the rule is to ensure that bidders are serious and demonstrate an ability to pay the bid price. That purpose isn't thwarted if a bidder is only short .008 cents, which isn't legal tender anyway.

Consider also that the entire purpose of the auction was to generate the most money for the city, which in this case would mean overlooking that measley .008 cents and accepting the highest bid.

I know what you're thinking. Didn't the "plot" of Office Space, which borrowed it from Superman III, involve the fraudulent distribution of fractions of cents? Yes! And perhaps the court had these schemes in mind.

That's because the court ruled for Carrocci, and said that the bidders and the city had to keep track of all those ha'pennies, lest they fall into the hands of Richard Pryor or disgruntled cubicle dwellers. Okay, seriously, the court said that the 20% rule meant what it said, and bidders had to meet that mark even if they had to round up their deposits and put up slightly more than 20%.

So, in the end, Carrocci gets the land, although he says he's expecting hassles when he applies for building permits. And if any of you had this problem on a law school exam, now you know where it came from.



Monday, June 14, 2004

Dorf on Judges
I don't read FindLaw's Writ columns much anymore. I find that there's just too many essays that are either not that good or not about anything that interests me, so I don't usually wade through them looking for gems. I like the Amar brothers pretty well, and Julie Hilden is kinky (see also here), but I don't need to hear John Dean pontificate most days.

Anyway, the point is that usually I don't worry much about these columns, but sometimes I see one that is so devoid of substance, so utterly craptacular, that it spurs me to reply.

Last week, FindLaw columnist Michael Dorf had an essay titled, "Reagan and the Courts: A Sober Assessment." The beginning of the essay says, essentially, Given the hoopla about Ronald Reagan after his death, one would think he is the greatest thing since the spork; however, all that is overstated. Having just spoken ill of the dead, Dorf notes that "Of course, it is impolite to speak ill of the dead."

Dorf "sadly" announces his conclusion that "the most profound impact of the judges Reagan appointed was to reduce the role played in the law by the compassion for individuals that so many people admired in Reagan himself." As for "evidence" of this assertion, Dorf offers the following. Starting with the Supreme Court, Dorf concludes that Rehnquist is a wash, because all Reagan did was move him over a few seats. That leaves O'Connor and Kennedy (whom Dorf calls "moderate conservatives") and Scalia (whom Dorf labels a "deep conservative"). So far, no real evidence that the Reagan appointees killed compassion, and Dorf does note that O'Connor and Kennedy have at times been "disappointing" to certain Reaganites whom Dorf implies expected all the Reagan appointees to "invariably vote as a bloc."

Dorf then turns to the lower federal courts, noting that the Supreme Court hears so few cases that this is where most decisions are rendered. Dorf calls the impact of the Reagan judges here "more clearly one-sided." Again, a search for evidence is fruitless. Dorf cites two "truly stellar" appointees -- Judge Kozinski and Judge Posner -- whose main positive attribute seems to be that they don't always vote with strictly conservative results. Dorf continues:
The run of judges appointed by President Reagan, however, have followed a distressing pattern. To paint with broad strokes, where possible, they take a stingy view of the rights the law affords people.

A former law clerk to a prominent Reagan appointee to the federal appellate court once told me that his erstwhile boss said he liked to dismiss at least one case per week on jurisdictional grounds. The former clerk was not joking, and the judge's remark was consistent with his and many of his colleagues' rulings.
Well, I've got news for Professor Dorf if he is shocked by a judge who likes to dismiss one case per week on jurisdictional grounds: So do I. In fact, that's a slow week for me. At my last orals session, I knocked out five cases on jurisdictional defects in about five minutes. That's a month's work for that mean ol' judge Dorf cites! (More on this in a minute.)

Dorf acknowledges that some people might argue that, since these people who are getting tossed on jurisdictional grounds are usually criminals, the strict judge is protecting the rights of crime victims. Therefore, maybe this is "compassion" directed elsewhere. But Dorf clearly does not buy this. He immediately goes on to lament Reagan-judge decisions that deny individual rights and produce a victory not for a crime victim but only for the government.

Dorf goes on to say that Reagan evinced a compassion for individuals hurt by his programs, but not enough compassion to change the programs. His appointees, argues Dorf, have not even had the virtue of this individually-meted compassion. His only evidence for this is by way of contrast with Justice Blackmun's infamous "Poor Joshua!" dissent in Deshaney v. Winnebago Co. Social Servs. Dep't. Blackmun, you see, had compassion, but those hard-hearted Reagan appointees voted to throw poor Joshua under the wheels of the Winnebago County bureaucracy.

All right. I wanted to present Dorf's argument before I finished my rejoinders. First, there are plenty of "truly stellar" Reagan appointees to the circuit courts besides Posner and Kozinski, even if they do vote very conservatively all the time, which they don't. I won't list more here, lest I slight some deserving judge, but I think most people can recognize a good judge even if one disagrees with certain opinions. I just find it remarkable that Dorf can't find the space to mention any.

Moving on to jurisdictional issues, again, I have to disagree with Dorf. Even though it might put me out of a job, I tend to think that our legal system -- especially the post-conviction system -- would be a lot more just if it were more comprehensible to the lay petitioner. That said, I think strict enforcement of jurisdictional and procedural rules is a good thing for two reasons. (And I don't mean "absolute," because there is some built in play at the joints, like equitable tolling of the statute of limitations, and the cause-and-prejudice two-step to excuse procedural default. By "strict" I mean that the notion that "thirty days" means "thirty days" should be the rule, not the exception.)

First, by weeding out the cases suffering from some jurisdictional defect, courts can spend more time on properly-brought cases. Given the rapidly increasing caseloads for the federal courts, necessity requires some winnowing. I grant that there are some meritorious claims that get tossed on "technicalities" (I've had two or three cases in almost two years that I felt had real merit but lost on a jurisdictional or procedural rule, which I consider a pretty good record), but experience shows that meritorious claims are more likely to be found in cases properly before the court. And after all, to quote Judge Posner, "[j]udges are not like pigs, hunting for truffles buried in briefs." (U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). There has to be some responsibility on the petitioner to present a claim in the proper fashion -- which is another argument for developing some less labyrinthine rules.

Second, I don't want to compare litigants to children, but like kids, they need the security of rules. Shouldn't a prisoner be able to rest easy knowing that, as long as he files his habeas petition within one year after his conviction is final, the court can't kick it out for being late? No laches or abuse of the writ traps for the unwary litigant here. Even if the current system is draconian (an overstatement, maybe), at least everybody's on the same draconian page. Isn't it at least somewhat compassionate to let litigants know that, as long as they plays by the rules, they will get their day in court? Is it automatically more compassionate to have a system in which no one knows the rules?

I know what you're saying: Isn't that how we got the Sentencing Guidelines, begun during the Reagan administration? Instead of the arbitrariness of a system where two defendants could get vastly different sentences after committing the same crime, we get a system where they get equally harsh sentences regardless of individualized mitigation. Fine. But all I'm saying is that I don't think jurisdictional dismissals are as open-and-shut as Dorf suggests.

In the end, Dorf offers absolutely no evidence for his argument about the circuit court judges, and his only concrete example about the Supreme Court is Deshaney. Even if Deshaney was wrong, I don't think it was unreasonably wrong, although to Dorf that mere ambiguity would seem to require, under our compassionate constitution, a victory for poor Joshua. (A better example, to my mind, would have been Mickens v. Taylor or Coleman v. Thompson, although perhaps Dorf did not want to inject the death penalty into all this.)

I know it was written only a few days after Reagan died, but it still seems like a pretty shoddy product. I'm not really qualified to offer my own assessment, but plenty of them are flying around if you're looking. I recommend this excellent one from Tony Mauro.





Be nice until it's time to not be nice.
Instead of a meandering intro, I'll cut to the chase. In a recent off-blog conversation, Milbarge prompted me to come up with a top ten list of bad movies that I enjoy. So here it is. Here is my official list of movies I am ashamed to admit I like (in no particular order):

1. The Rock
2. Point Break
3. Navy Seals
4. Hudson Hawk
5. The Replacements
6. Road House
7. Pure Country
8. Big Momma's House
9. Captain Ron
10. Cliffhanger

Let the mocking commence. However, before pointing out the splinter in my eye, consider the log in your own. I submit here a list of movies that you should be ashamed to admit you like (again, in no particular order):

1. Pretty Woman
2. Finding Good Patch Emperor's Society*
3. Armageddon
4. Swordfish
5. (tie) White Men Can't Jump and White Men Can't Jump II: Money Train
6. Robin Hood: Prince of Thieves
7. Angels in the Outfield
8. Speed
9. Mr. Wrong
10. Pearl Harbor ("You're gonna be a daddy." "No, you are." -- Ugh, I'm gonna be sick.)

BONUS MOVIE: And let's not forget Milbarge's favorite movie, Fandango.

YET ANOTHER BONUS (It's a 2 for 1 Bonus): My nominees for Worst.Movie.Ever: 3,000 Miles to Graceland and Broken Arrow. I can never choose between these two: On the one hand you have the Coz, Christian Slater, David Arquette, Kurt Russell, Thomas Hayden Church, and Howie Long. On the other hand, you have John Travolta, Christian Slater, Frank Whaley, and Howie Long. I tend to hate Broken Arrow more because it was directed by John Woo. He's not a "great" director by any stretch of the imagination, but I expect more from him than from the two no-names who directed 3,000 Miles to Graceland. Anyway, the real point of listing these two movies is that if you like either one, even just a little bit, then you are prohibited from making fun of me for enjoying the tropical comic stylings of Martin Short and Kurt Russell.

*Fictitious title that stands in for those sappy melodramas that rely on cheap emotional hooks to trick audiences into revering otherwise mediocre movies: Dead Poet's Society, Patch Adams (a Robin Williams two-for), Finding Forrester, Good Will Hunting, and The Emperor's Club.





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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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