Begging The Question

Friday, August 13, 2004

Just In Case There Was Any Confusion....
Just in case you were wondering about my twice-postponed "BIG ANNOUNCEMENT," I'll go ahead and let you know that it's not an announcement that I'm outing myself and resigning.

Wow. Wonkette calls Gov. McGreevey's announcement "the speech of the year," and even though it's an election year, I have a feeling it might hold up. Yeah, I know there's a lot more to this story than we know now, but it's still a huge deal, and it was amazing to see.

Let me get these rejected headlines out of the way now. If they aren't rejected, they should be, but this is what my feeble mind comes up with at this hour.

"The Gay-vernor."
"Queer Eye for the Politician Guy."
"What Would Schwarzenegger Call This Democrat?" (a reference to the "girlie-men" squabble; hope that wasn't too obscure)
"Hurricane Charley Announces It Would Rather Be Known As Hurricane Charlene."
"New Jersey Residents Order Massive Quantities of Homocil and Schmitt's Gay Beer."

Clearly, I mean no offense if you, or your loved one, or your Governor, is gay. I'm just trying to add a dose of levity to what I find to be a truly stunning event. In fact, I was thinking earlier of anything similar to this. I'm sure I'm forgetting something, but I'm having a hard time coming up with contenders. I'm not talking about reporters breaking huge, shocking news stories about politicians. I'm talking about politicians themselves dropping bombshells like this out of the blue (at least nationally -- I'm sure to lots of people in New Jersey it wasn't news at all).

If I didn't limit it to politics, maybe Magic Johnson announcing he was HIV-positive is a good example. I remember how shocked I was at that news. Politically, the one that I would offer is the speech by Lyndon Johnson (no relation to Magic) announcing he wouldn't run for another term as President. A lot of people speculated about that, though, after early primary returns and the awful state of the war in Vietnam then.

My stepfather told me about his memory of LBJ's speech in March 1968. He was in college and was sick with the flu. Word came that the President was going to be making a big speech that night, so all the college kids watched in trepidation. According to my stepfather, they all hated LBJ because of the war, but were scared to death of what he might say. After all, he might announce that we dropped the bomb on North Vietnam, or that he was ratcheting up the draft and everybody was going, or who knows what. And then when LBJ announced that he was quitting, all hell broke loose. My stepfather lived in a high-rise dorm, and he said that he went on the balcony and people were throwing toilet paper off other balconies and lighting fires in celebration. My stepfather decided to get drunk, but all he had was a bottle of gin. So, sick as a dog, he drank that whole bottle, and got even sicker. To this day, he gets nauseous at the smell of gin, thanks to LBJ.

I doubt anybody's going to get drunk over Gov. McGreevey's news, and if you get drunk over my little announcement (see how it's gotten downgraded by comparison?), well, then you really have a drinking problem. Yes, I'm looking at you, Mr. P. Larry, I would be looking at you, but (a) I know you're drunk already anyway, and (b) you already know the news.





Motion For Life To Stop Sucking: DENIED
Matt at L^3 noted earlier that the Iraqi soccer team upset heavily favored Portugal in the Olympics today. And in an even more surpising upset, in the perennial battle of Work versus Blog, underdog Work pulled out an amazing come-from-behind win to stun everyone, especially yours truly. Plus, I went to a soul food place for lunch and for some reason it didn't sit too well with this white boy. So, I wasn't feeling well this afternoon, and then came home and dozed. Plus, a good friend from college is building a house in Tampa (well, she isn't building it; she and her fiancee are paying someone to do that), so I've been watching the weather. The house was supposed to be finished by now, but she sent me a few pictures a week ago and it didn't even have the drywall up yet. So, at least they didn't have to board up their windows.

Anyway, part of the reason work got so frustrating today was that I had to deal with a motion in a case, and it was a motion I'd never seen before. So, I had to spend some time trying to figure out exactly what the guy was asking for, and trying to figure out what kind of "regular" motion it was most comparable to, and then trying to figure out what the law is for that, and then writing it up. This reminded me of some funny stuff, so I thought I'd write a bit about that rather than try to do something substantive like make the BIG ANNOUNCEMENT I've been meaning to write for about three days. (It's coming Friday, I promise! Work never wins twice in a row!)

I'm sure it's nothing like what they see in the district courts, but we get some crazy motions sometimes. Unfortunately, we don't get to write dispositions as fun as the recent one Greg at Begging to Differ points out. Or the law school bulletin-board favorite, Motion To Kiss My Ass. But someone in the office does keep a file of our zaniest stuff, for a little comic relief now and then, and the trump card whenever a new attorney brags about his or her nutty motion.

Among the contents is a drawing a prisoner sent in of his genetalia. I think he was trying to prove some injury or another, or perhaps he was merely hoping for...ahem, equitable relief. Rather than a three-dimensional rendering, it appeared to be a tracing, as it was just an outline. The attorney who keeps the file made a copy (obviously, the original had to stay with the record). Another attorney was laughing about it, holding to her head and making jokes, and pointing out all the little misshapen squiggles this poor prisoner apparently had downstairs. The file-keeper let this go on for a minute, and then said, "You know that's the original you're fondling, don't you?" The other attorney looked as if she had been touching the guy's actual penis, and dropped the surely germ-ridden page immediately, fleeing to the nearest restroom.

I also know there was a "Motion for a Fuck You Motherfucker Writ." In fact, the schlong art might have been a draft order attached to that motion, but I don't remember. It seems appropriate. The thing about motions, though, is this. By court rule (as well as fairness, judicial efficiency, and common sense), the final order or opinion in a case has to dispose of all outstanding motions. For something really off the wall, we don't even see a need to discuss the merits. We just recommend denying it to make it official, and toss it in the opinion. Sometimes it gets a cursory treatment like, "Movant has not provided any legal support for his motion to disbar the AUSA and impeach the distict court judge and be awarded $40 million in this appeal from the revocation of his supervised release...." But everything has to get ruled on, which is why my favorite item in the file is a sob story from a prisoner styled as a "Motion for Justice." It's a long letter about how tough he's got it, and how he didn't do it, and how he should be let out of jail in time for Christmas with his kids, and how if America had a real system of justice we would just be able to call up the warden and say, "Turn 'im loose!" (I kid you not. He literally said that "a simple phone call" would clear up the whole mistake. Yes, it's kind of sad that he's that misguided about things, but hardly unusual, and you get kind of jaded after a while.) Anyway, when the opinion issued in the underlying case, it had to, as a matter of course, deny the motion. I would really love to see that order cited some day for the proposition that there is no justice in this court. After all, this guy moved for it, and didn't get it. Case closed: Justice denied.



Thursday, August 12, 2004

Watch This Space
A couple of things. First, I had to be out of town on bid'ness till about midnight tonight, so I wasn't able to post the announcement I intended to. But, keep your eyes peeled, because a BIG ANNOUNCEMENT is coming later today.

Second, this isn't my big announcement, but I'm happy about it nonetheless: The Oxford American is coming back! (The website was down when I tried to link to it, which isn't a good sign, but trust me on this.) The OA has apparently decided that capitalism isn't going to support the magazine, and is reconfiguring as a not-for-profit venture under the auspices of the University of Central Arkansas. The next issue is coming in November, after which it will appear quarterly. If you're not familar with it, browse around the website a little. Briefly, it's a Southern literary magazine, but it's so much more -- music and food and culture and photography and politics and more, plus some amazing writing. I love this magazine, and have been eagerly hoping for its return. It looks like they're finally on strong long-term footing (as strong as anyone can be in the magazine industry, I guess). And please don't use my mention of this as a vehicle for Grisham-bashing; his involvement these days with the OA is basically nil. Don't let any animosity you feel towards John Grisham prevent you from rejoicing in the reprise of the OA.

Third, you may have noticed little pictures of book covers midway down the right-hand column. BTQ is now a Barnes & Noble Affiliate. What this means is that we get a little (very little) credit at B&N if you buy something by clicking from here. And it doesn't have to be the particular books or CDs or whatever are showing on this page -- anything will do, apparently, as long as you get there from here first. So, if you're going to buy something from them anyway, why not help us out a little too? OK, that's all the pressure I'm going to put on you -- I'm not much for the hard sell. And as soon as I figure out how to do it (Fitz set this all up and then left me high and dry), I'm going to change the tagline from "Milbarge Recommends" to "Milbarge Suggests" or something more neutral. The reason is that some of the stuff I might post there I haven't read, and I don't want to seem to vouch for something I don't know well enough. But anyway, feel free to check it out, and thanks for any support we get via that thing.

Finally, I mentioned a couple of days ago my inner dilemma over whether to blog about about a magazine article I'd read (the "good post"), or to read a book cited in the article and write a broader post (the "great post"). Well, I've decided I'm not going to read the book, at least not now, and I'd rather not just repeat what the article says without something more to offer. So, it's on the scrap heap. But the article is really very good, and I heartily recommend it. It's "The Price of Valor," by Dan Baum, in the New Yorker last month. It's about the tough time many of soldiers are having -- not because they feared getting killed in Iraq, or even because their buddies died, but because they themselves killed someone. This isn't the kind of war that can be fought only from the air or from a distance. A lot of killing takes place up close, at places like traffic checkpoints. One of the most basic moral tenets of humans is that killing is wrong. The military necessarily trains soldiers to overcome that moral resistance; it even trains them to kill instinctively. There are moral justifications for this, to be sure, part of which depends on the morality of one's cause. But then what? What happens after the soldier comes home?

I recall that line from Full Metal Jacket when Gunnery Sergeant Hartman tells the Marine recruits that "Your rifle is only a tool. It is a hard heart that kills." After the military hardens a soldier's heart, what happens when he goes home? The New Yorker article discusses this, and notes that the military seems to have no interest in finding out. It's a really powerful article.

One of the works cited in the article is a book I started reading a few years ago but never finished. It's On Killing: The Psychological Cost of Learning to Kill in War and Society, by Dave Grossman, a former Army Ranger and psychologist at West Point. Grossman explores how it is that the military changes these deeply ingrained behavioral impulses, noting that in World War II only a quarter of American soldiers actually fired their weapons at enemy soldiers, but by Vietnam that number had risen to ninety percent. He argues that society as a whole is going down the same path, with the media and popular culture using some of the same methods to desensitize people to violence.

If I had the time to read the book, I would have liked to critique this provocative theory and discuss applications to the situation in Iraq. One interesting facet of the war there is that so many of the soldiers are members of the Guard and Reserve, and probably never expected to be full-time trained killers, and probably go home to a (generally) different situation than active-duty soldiers. I'm sorry that other demands on my time prevented this, but I welcome any thoughts you might have. (And see also this post from the always-excellent Phil Carter.)



Wednesday, August 11, 2004

Bronze Star...Purple Heart...Gold Medal

(click here for full-size)

Kerry Considered A Lock For Low Balance Beam Medal

AP, Athens-- John Kerry, taking a break from campaigning to travel to Athens with the U.S. Olympic delegation, abruptly decided to enter the competition as the only participant in the demonstration sport of low balance beam. International Olympic Committee President Jacques Rogge of Belgium said that Kerry had the full support of most European nations in his efforts to include the new sport on the Olympic program. But it was last-minute lobbying (and rumored payoffs) from billionaire George Soros that sealed the deal. Said Soros, "I was actually born in Hungary, but most people think I'm Greek, and the Greeks seemed too preoccupied to worry about it." As the picture makes clear, the Greek venues appear to be relatively spartan. Spectators have criticized the poor sight lines, as there are no bleachers, and athletes are unsure of how the occasional train rumbling through the hall will affect the games. U.S. gymnast Paul Hamm noted, "It's not like the trains run on time around here anyway, so we can't predict when one will come. We're just hoping to be allowed a do-over in case one interrupts a routine."

As the only competitor in low balance beam, Kerry is virtually assured of a medal. Kery says his biggest concern is whether he can "stick the landing." The degree of difficulty in his ninety-second routine is considered minimal, as it does not include any flips and at least one foot remains on the beam throughout. Nevertheless, for safety's sake, Kerry uses a spotter, visible to Kerry's left in the photo.

The tradtional balance beam apparatus is approximately four feet off the ground, and has long been included in the Olympics, but is only used by women gymnasts. The low balance beam, by contrast, rests on the ground itself and rises about four inches high, and is open to male gymnasts. Kerry said he was committed to "creating opportunities for all people, regardless of gender." Kerry acknowledged that he would compete in casual clothes, rather than the usual gymnastic singlet, although in the event of inclement weather (the gymnastics venue has no roof), he might don his NASA space suit.

Foreign journalists, noting that the U.S. track and field team is mired in a doping scandal, took one look at Sen. Kerry's ginormous noggin and questioned whether he had been using steroids. Kerry testily denied the charges, stating, "My blood is as pure and red and thick and tasty as Heinz ketchup!"

[Picture via Southern Appeal, where you can find some other creative interpretations of what's going on here.]



Tuesday, August 10, 2004

Takin' Care Of Business, And Workin' Overtime
Am I the only one who missed the Federal Circuit's decision in the Justice Department attorneys' overtime pay case? I know this is a little dated, but I don't recall seeing a lot (or any) coverage of it when it happened (June 23). Of course, I think I was out of town at the time, and maybe everybody was talking about it then. And a search through the How Appealing archives reveals this post about it and a Law.com article. But I just saw it in a U.S. Law Week issue, and I find it quite fascinating.

In short, a 9000-member class of current and former DOJ attorneys sued to get back overtime pay from the period 1992-1999 (Congress passed a law in 1999 specifically removing DOJ attorneys from overtime pay eligibility). The trial court granted summary judgment to the attorney class, but the Federal Circuit reversed. The decision is Doe v. United States, 372 F.3d 1347 (Fed. Cir. 2004), and it's available here in Word format.

The statute in question says that overtime must be "officially ordered or approved." The implementing regulation (promulgated by the Office of Personnel Management) specifies that the request must be ordered or approved "in writing" by a properly designated official. The panel held that this interpretation of how official ordering and approving must be done is entitled to deference (Chevron-style, for you Admin Law geeks). Moreover, none of the materials submitted by the plaintiffs satisfied the OPM rules. This was so despite language in the binding, official United States Attorney's Manual that "Assistant United States Attorneys are professionals and should expect to work in excess of regular hours without overtime premium pay." The plaintiffs offered lots of other documentation (including required dual time sheets -- one of 40 hours for their pay and one of actual work for things like attorney fee calculations), as well as testimony about the "culture" of the DOJ that expects them to work as much as necessary. The court said none of that stuff was good enough because it either wasn't the kind of "writing" the regs contemplate or wasn't issued by a properly delegated official, or both.

(Aside: Some part of me has to wonder if the budgetary implications of an affirmance came into the court's decision. I couldn't find the briefs, so I don't know if the DOJ or the plaintiffs suggested a dollar figure here. But it wouldn't take many hours of overtime for the amount to quickly run into the hundreds of millions of dollars. Obviously, it would be impossible to document overtime down to the minute going back that many years, so they'd have to reach a settlement, but in any event it would be a lot of money. The court had to be aware of that, and maybe it was concerned about ordering the government -- facing a big budget deficit -- to pay out thousands of dollars to thousands of lawyers. But, we could put a different spin on it. The government could argue that the monetary effects of this decision are a reason it did not officially authorize overtime in accordance with the statute and regs. It would say that, given that there's no money for it, it would never have "ordered or approved" overtime. Ergo, lack of money is evidence that the government didn't intend to comply with the law.)

This is a total victory for the DOJ at the expense of a lot of good AUSA's who busted their tails for nothing. Sure, the court added a few mollifying words that it wasn't "countenancing any effort by DOJ or any other agency to evade the requirements of [the act or regs]." But why stop now? The DOJ gets to have its "culture" and not pay for it. It gets the benefits of an unwritten code without the burdens it would have to suffer if they wrote down what everybody knows is true. The DOJ said that attorneys could simply refuse to work extra hours, and if adverse action were taken against them, their recourse is the Merit Systems Protection Board. But really, how many AUSA's do you think would be willing to risk it? There's a reason the class representative in this suit is suing pseudonymously. An AUSA who doesn't work overtime is a former AUSA.

Being an AUSA is not a forty-hour job. Refusing to pay those attorneys for the work they do will drive off good attorneys. I'm not saying we should pay them like junior associates at private firms. But it's just wrong to pay them for only forty hours and still tell them to work more. Let me be clear about what my point is. All I'm saying is that it's clear to me that the DOJ does "order or approve" overtime, but doesn't have to pay for it because it skirts within the letter of the law. It should either pay attorneys for the work they actually do, or it should let them work only the hours they get paid for.

[Disclaimer: I spent a summer during law school interning at a U.S. Attorney's Office. Therefore, I know some members of the class (I haven't discussed this with any of them), but I'm not in the class because (a) I was there after the class period closed, and (b) I was a "volunteer," and (c) I didn't work any overtime, that's for sure.

Note: This post's title from the Bachman-Turner Overdrive song "Takin' Care of Business."]





"I Can't Serve On This Jury Because I'm Too Fat"
Via William at Southern Appeal I find this enjoyable and interesting essay by Jacob Sullum at Reason. It's called "The War on Fat," and is a critique of the growing anti-fat movement. (More specifically, the part of that movement that seeks to enlist the government to control what we eat via taxes and subsidies and other horrors.) It would be funny but for the fact that these ideas are actually catching on, which is scary. I might be a liberal, but I'm not a nut.

Anyway, there's lots of good stuff in there, but while reading it (over lunch at Quizno's), I got to thinking about the threat that if the legislatures won't adopt totalitarian food regimes, advocates would simply head to the courts. Now, I'm not going to get into when it's a good idea to seek a judicial answer to social policy questions. Suffice to say I'm more okay with it than the good folks at Southern Appeal are.

But I wondered who could possibly serve on a jury in an anti-fatty food suit. If some judge somewhere certifies a class of, for example, all consumers of fast food, I'm in that class. My guess is the judge is too. And probably every potential juror. Could you ever impanel an impartial jury?

I don't have time to do even a halfway job of checking the law on this, but I did run across a casenote by Vicki Elmer, available at 48 Loyola L. Rev. 161 (2002), concerning Scott v. American Tobacco Co., 795 So. 2d 1176 (La. 2001). That was a smoking class action, and the defendants challenged for cause jurors who had family member who smoked. The Louisiana Supreme Court held that even having immediate family members in the class didn't require per se exclusion of the potential juror, but went on to say that the trial court erred in not removing for cause three jurors who wanted their family members to stop smoking. Anyway, in addition to this case, the note discusses some common law rules and decisions in cases involving jurors who had relationships with police officers and insurance companies in cases involving those defendants. So, there's a little background and avenues for further investigation if anyone's interested.

The idea of successfully suing on any of the theories I've seen advanced so far seems far-fetched. But if any of these cases ever get to trial, I'd love to see the voir dire, just to see how they deal with this. At least with, say, a police defendant or an insurance company defendant, there will probably be enough potential jurors left over even if you disqualify everyone with a close relationship to the defendants. I just can't see that being the case with a fast food suit, where the problem wouldn't just be close family members but the jurors themselves being part of the class.

[Note: I put the title to this post in quotes not to be throwing about extraneous quotation marks, but to make clear that I'm quoting a hypothetical venire member. It's not anything I've ever said, nor is it a reason I would give to avoid jury service. I thought about going with the line from the Simpsons Spin-Off Showcase episode, from Big Daddy: "Ooh, I suppose I'd best to run. Lord have mercy, how I wish I weren't so fat."]





Vexation
Here's my quandary. I could write a good post based on a thought-provoking magazine article I just read.

Or, I could write a great post based on a book cited in the article. I own the book, and I started it a couple of years ago but didn't finish it. It is about 300 pages long, and I'm not a speed-reader.

So: good post (relatively) soon, or great post probably never? How much effort is it worth to make a good post great? Consider also the opportunity costs of all the time I'd spend reading when I could be producing several other good posts.

Stay tuned.



Monday, August 09, 2004

My Love/Hate Relationship With Sleep
The same thing happens nearly every night. It's about midnight or so, and I've finished watching whatever tv show was on, and eating, and maybe sending an email or two, and figured out what to wear the next day, and convince myself it's clean, and look around and think about starting to pack for my move. And somewhere in the recess of my brain the thought occurs that I could write one of those longish blog posts I've been meaning to write forever (like the one about how I got my clerkship or the one about why I liked law review), or do something else semi-productive. But I dismiss this flickering thought by telling myself that it's late, and I'm tired, and I don't have time to write it, so I'll just surf around the web a little while longer and go to bed.

The next thing I know it's 2:30, I'm still awake, I'm going to Blogger's "recently updated blogs" page to browse blogs with cool names or otherwise completely wasting my time, and I could have written both those posts. But now it really is too late, and I stumble into bed.

And I lay there. For a long time. I've always been a night owl, and an insomniac, and I have a very hard time getting to sleep, even when I'm tired. Before you ask, I don't partake of many stimulants other than my sweet tea, and (a) it doesn't have a whole lot of caffeine in it, and (b) I'm pretty sure I've built up a tolerance to it -- I don't feel "wired" at all after drinking some, no matter what time of day. Anyway, back to my routine. I usually start off on my side, with an arm around the other pillow. (Note, ladies: this position is available.) After a while, my arms gets numb and I end up on my back, which is how I fall asleep.

Sometimes I think about why I can't sleep, and I think that part of the reason is that I find it boring. As I lay there, my mind races with a jumble of thoughts and plans and potential blog posts and whatnot. And sometimes it seems like I'm missing something. Here I am laying around doing nothing, when I could be doing anything. I know, it's not like I'm a blur of activity while I'm out of bed, but even watching something on tv is better than just staring blankly into space. There's a Jerry Seinfeld bit about how men will fight sleep looking for entertainment, and the finger on the remote control is the last part of the body to succumb. I think that's true for me, although that finger is on the computer mouse. So, virtually every night -- at least every weeknight -- I hate going to sleep, and I find myself struggling not to do it, because I'd rather be doing something else.

But the next morning, everything is reversed. Once I get to sleep, I love it. I heart sleep. I luuurrvvve sleep, and I want to have like ten million of its babies. The alarm clock(s) go off, and I know that I would be perfectly capable of functioning if I hopped right out of bed. But I don't. I want more sleep. I stay in bed until the last possible moment, and sometimes longer. It's never enough. I honestly, sincerely, cannot remember the last time I woke up and could not have gone right back to sleep, no matter how much I'd just had. All those concerns about more important things, other ways to occupy my time -- gone. There's a reason that lots of this blog's posts have time-stamps of 1:00 or 2:00 in the morning, and very few have times like 7:00 or 8:00 in the morning. The reason is that I don't care about much at that hour besides getting more sleep. Here's a tip. If you ever need anything from me, ask me as soon as I wake up, and promise me more sleep in return: "Here, sign this blank check and power of attorney and I'll be going." Me: "Okay, just turn out the light and don't slam the door on your way to the bank. Snzzzz."

I'm capable of getting up early if I have to, although I usually accomplish it by sleeping less rather than going to bed earlier and sleeping the same amount. I know I'm going to have to start doing that in a few weeks when I begin my new job. And, sadly, probably for the rest of my career. I don't really have much of a point here -- other than maybe to say that nightowls are people, too, dammit, so why does everything have to start so darn early! But this was just something I was thinking about last night, lying in bed, not sleeping.





Ten Things Not To Say At A Supreme Court Oral Argument
1. "Do the tails on this morning coat make my ass look big?"

2. "Loosen up, Sandy baby!"

3. "My argument this morning relies entirely on legislative history."

4. "Whatsamatter, Clarence? Cat got your tongue?"

5. "May it please the Court...the judgment of the Ninth Circuit under review here should be affirmed."

6. "May I please the Court?"

7. "To answer your question, Chief Justice Wapner..."

8. "Everything that guy just said? Total bullshit."

9. "No wonder you don't want cameras in here. Up close, you guys look really old."

10. "The precedent? Uh, well, the precedent, sir, is George Bush. I mean, you ought to know, you put him there."



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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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