Begging The Question
Saturday, December 11, 2004
I was a little late in posting this, so here's two from the episode where Bobby joins a coven of pretty nerdy "witches."
Hank, after noticing Bobby's book of "Magick": "Forty-five dollars!? The family Bible cost less than that, and it was written by Jesus!"
Hank: "This is a carburetor. Take it apart. Put it back together. Repeat until you're normal."
Bobby: "But Dad, the dark arts are nothing to be afraid of."
Hank: "I'm not afraid of that garbage. I'm afraid of you getting your ass kicked every day for the rest of your life because you found a new way to act like a nerd."
Bobby: "Ward said you wouldn't understand."
Hank: "Bobby, you don't need a crystal ball to see Ward's future. He's going to live with his mother until she dies, and maybe for a few weeks after."
Friday, December 10, 2004
Eduardo, star of the Mexican soap opera "Msgr. Martinez": "You thought I wanted you as a lover?"
Peggy: "Well, yes -- you couldn't have been more obvious: the mango, the roses..."
Eduardo: "The roses were a surprise for my wife."
Peggy: "Well of course you would say that in front of her. But you cannot deny your constant flirting with me -- the wine, the familiar use of 'tu' instead of 'su'..."
Eduardo: "I was just being a good host. Senora, I am sorry, but I do not desire you that way at all. You are, how you say, um...old."
Sorry for the lack of posts. I've been busy, sick and, most of all, lacking in motivation. I've not had much interest in writing lately. Why? I do not know. I've come up with some topics, but then the posts fizzle out after about 3 sentences. So, instead of writing the posts, I'll just give you the topics and you can imagine the posts I'd write about them.
1. King of Cheese: Keanu Reeves or Ben Affleck?
2. A review of the first-person shooter Men of Valor for X-box.
3. A post on Santa Maria-style "barbecue."
4. The Carson City Wal-Mart: There must be a methadone clinic in the lay-away department.
5. A rant about the cable company's star-rating system: In what universe does The Devil's Advocate rate three stars and Raising Arizona rates only two?
6. My thoughts on Blakely and Booker - hah! You know better than to think I'd write about the law.
7. A restaurant review of In 'n' Out Burger entitled "No time for the old in-and-out, love, I've got to read the meter!" with bonus points for the first reader to identify the source of the title.
8. A post outing Milbarge [sic] and all the other bloggers whom I've secretly tracked down.
See? There is some good stuff in that list, but I just can't muster the energy to commit anything to print. Eh, that's probably for the best. My posts as you imagine they might be will no doubt be better than anything I might actually pen.
We now return you to your regularly scheduled all-Milbarge blog.
PS - Why doesn't the Blogger spellcheck dictionary recognize "blog"?
Thursday, December 09, 2004
I don't follow international news as much as I should, but I think we should all keep an eye on Taipei this weekend, as Taiwan holds legislative elections. Pro-independence parties (the "pan-greens") are poised to take a majority of seats in the parliament, which could in short order lead to troubles with China. Let me throw a few links at you (thanks, Google News!), and then I'll get back to my ramblings.
This article in December's Atlantic about the election started me thinking about all this. A subscription is required to read that story; I'm afraid. Here is a New York Times article about the rising popularity of one of the pro-independence parties (registration required -- check here for most of that story without registering). Here is an AP story discussing the election. Here is one from the Economist about Taiwan's President, Chen Shui-Bian, and one from this week about the election. Here's one from Reuters about police finding explosives at Taipei's main railroad station last night (there were also bomb threats against the world's tallest building, the Taipei 101 tower). Note that Chen was shot just before his election. He wasn't wounded too badly, and his opponents (the "pan-blues") accused his party of staging the attack, as they might well do about this bomb scare.
So what is Chen hoping for if he gets his majority? First, he wants to change the country's name to Taiwan, from "Republic of China." While largely symbolic, it would irritate mainland China, which of course still sees Taiwan as a rogue province. Here's more on the name change from Taipei and Japan. Chen also wants a significant military buildup. Trevor Corson, author of the Atlantic piece, suggests that the best course for the U.S. to take is to let Taiwan defend itself. Corson mentions an article in the Washington Quarterly called "Dangerous Games Across the Taiwan Strait (20-page pdf). Its author, Andrew Peterson, an NYU Law student, discusses what might happen in a spiral of brinksmanship.
It looks like the Taiwanese electorate, and certainly some wings of the pro-independence coalition, are ready for major provocation. China has said repeatedly that it wants nothing less than reunification, and the international community can shove it, even if it costs Beijing the 2008 Olympics. The United States has been no less extreme -- George Bush's words were that the U.S. would do "whatever it takes" to defend Taiwan if China took military action against the island. The State Department is not supportive of Taiwanese independence, however, and has cautioned Chen to take it slow. Even Donald "You go to war with the Army you have" Rumsfeld would understand that the U.S. armed forces have other priorities, and maybe not the numbers, for that fight to happen now. And so I doubt that sending the Navy to the Strait (Corson and others suggest a Chinese submarine blockade of Taiwan would be a likely response) is high on anyone's wish list this holiday season.
It would be easy to take pot shots at President Bush for talking a big game on democracy in the Middle East while simultaneously trying to tamp it down where it is actually generating, but the fact is that the American policy on Taiwan has been consistent for decades. I'm not expert enough to offer a definitive answer on what that policy should be, but it's clear that changing it would be tricky. And things could get tricky for China too -- bluster aside, it knows the world is watching. Given everything it has put into its Olympics effort, it's hard to picture it giving it all up. Taiwan seems to be holding the best hand, and seems prepared to play it.
How far is the U.S. willing (or able) to go to defend Taiwan? How far should it go? What is China going to demand, and what will it accept? How aggressive with Chen be? We will start to see this weekend.
UPDATE: Never mind. The opposition Nationalists (the pan-blues) pulled out a surprise upset. They campaigned on a platform of more gridlock, and I guess that's what voters wanted. No doubt the State Department is breathing a sigh of relief. And China's probably pretty happy too. Onward, status quo.
Bill's Aunt Esme: "The Dauterive blood is down to a trickle. My two sons and my son-in-law, Girac, Rene, and Emeril, died of arterial sclerosis in their twenties, leaving three desperate, childless widows to wander this house. They are strings on a harp stretched far too taut, and if they are not strummed soon...(chuckles) well...they really need to be strummed."
Peggy: "This is right out of Shakespeare!"
Wednesday, December 08, 2004
I guess I'm just in a Blakely/Booker mood today. I thought I would post here something I originally published over at Appellate Law & Practice as part of the case summaries I do for that blog. I decided that, rather than try to elaborate, I'd just post it as is (very slightly edited) in the hopes that maybe some people would come for the funny poetry and stay for the substantive discussion. I'd appreciate any thoughts my fellow law nerds might have.
Anyway, what got me thinking was the Eleventh Circuit's order in United States v. Levy denying rehearing en banc. Judge Hull wrote an opinion concurring in the denial of rehearing for herself and three other judges. Judge Tjoflat (citing Prof. Berman's Sentencing Law & Policy blog on page 33 of the pdf) and Judge Barkett wrote dissents from the denial. The issue is whether Levy could benefit from the Supreme Court's decision in Blakely v. Washington, which was issued after a panel of the court affirmed Levy's conviction and sentence. On Levy's petition for rehearing, the panel applied the circuit's general rule that issued raised for the first time on rehearing are not considered (a version of the standard rule that issues not raised in the initial brief are waived/abandoned). The dissenters, at heart, asserted that the Supreme Court's rule that its decisions should have retroactive application to cases still pending on direct appeal overrides the circuit's procedural rules, and that the court can at least apply plain error review to the claims. Plus, they say, it's really unfair. The concurring judges respond chiefly by arguing that the retroactivity cases don't require per se application of Supreme Court decisions, regardless of whether the issue was raised or not. The court denied rehearing in a similar case, United States v. Ardley, 273 F.3d 991 (11th Cir. 2001), after Apprendi, and apparently not enough minds have changed since then.
Here's my concern, which was also raised by the dissents. One reason Levy's counsel didn't raise the Apprendi issue in his appellate brief was surely the Eleventh Circuit's 2001 decision (Sanchez) holding that Apprendi doesn't apply to the guideline ranges under the statutory maximum (the claim now pending in Booker). Any appellate lawyer worth his or her salt knows that a basic function of an appeal is to winnow claims. You simply don't bring patently meritless claims -- as one would safely have considered this claim three short years after Sanchez. In response to the dissent's argument that appellate lawyers will now bring a "laundry list" of claims, all foreclosed by recent, on-point circuit precedent, the concurrers are able to cite a grand total of four cases (out of how many criminal appeals in three years?) that raised a Booker-style argument, despite Sanchez. Their argument, then, is that the parade of administrative horribles will never come. I think many appellate lawyers probably didn't even think to raise the issue, and those who did realized how detrimental raising a frivolous-appearing issue would be to their overall chances of winning. Now, however, they have to play by the "fool me once, shame on you, fool me twice, shame on me" doctrine. Appellate attorneys in the Eleventh Circuit are now on notice that nothing, no matter how fundamental, can be raised for the first time on rehearing, regardless of whether that would be the most efficient way to dispose of the case. Accordingly, they have every reason to raise as many issues as they can, without regard to the recency or clarity of circuit precedent.
This undermines stare decisis. Litigants need to know that, until the Supreme Court says otherwise, a rule like Sanchez is the law of the circuit. Having to re-consider the question anew in every appeal -- even to the limited extent of re-affirming or adhering to Sanchez -- makes it appear that the law is more unsettled than it is. With the benefit of not having to constantly restate its precedents, the court must take the burden that cases that aren't yet final are subject to retroactive application of Supreme Court decisions -- at a minimum when not doing so would work a fundamental injustice. (Note: I haven't reveiewed Levy's case enough to even hazard a guess at whether that might be the deal here.) After all, it couldn't be that many cases, and the window will be small. I guess I'm a standards-over-rules kind of guy, but the reasons for applying the rule in this case aren't compelling to me, and the ramifications of such strict application are worrisome.
Prof. Berman over at the Sentencing Law & Policy blog promised a free set of the Federal Sentencing Reporter issues covering Blakely to "the author of the best Blakely/Booker/Fanfan joke, poem, [or] song parody." The front-runner, according to the professor, is my "Take a Walk on the Blakely Side" parody. I'm flattered by this, of course, but it doesn't chill my competitive spirit.
To make sure no late-comers wrest away my laurels, I decided to make another attempt to make light of this incredibly significant case. My inspiration was a confession in Prof. Berman's comments that I was waiting for the Booker decision like a kid at Christmas, since we're all expecting (begging?) the decision to issue on Wednesday. So, naturally, my little poem is entitled "'Twas the Night Before Booker." It's a rushed job, and a little slapdash, and some of the lines might be groaners and terribly nerdy in-jokes. But I'm hoping that between this and my parody song, those FSR will be mine! Without further ado...
'Twas the Night Before BookerUpdate: No Booker today. *sigh* I feel like Charlie Brown after Lucy pulls the football away. Good grief! Oh well, enjoy the poem anyway -- it will have to be accurate sooner or later, right? And thanks to Prof. Berman and Howard Bashman for links to this post!
From an obscure one, the "Rainey Street Country Club" episode:
Ted: "Hank, I will admit I first asked you to join because you are white. Now I'm asking you to join because you are you. My friend."
Hank: "Can I ask you just one more question? What and what accessories do I sell for a living?"
(Hank shakes his head. Dissolve to Hank's lawn, the next day.)
Dale: "...To be fair, you used to sell tractors."
Hank: "Yeah, but Ted didn't know that."
Tuesday, December 07, 2004
What I am doing at work: Still working on the death penalty case I mentioned last week. I know this is the kind of job that would drive a lot of people nuts. With occasional diversions, I'm basically going to be working on the same case for a month or more -- reading the record and briefs, doing the research, writing a bench memo, going to oral aguments, doing more research, maybe helping to write an opinion. It's not the kind of job for people who need something new every day. My phone has rung one time in the last week. Other than the CLE, I haven't had any set appointments since I don't know when -- at least a month. I come in, I work at my own pace on whatever's going on, leave when the day is over, and rinse and repeat until it's done. It's depth and not breadth. But I like the contemplative, deliberative, cerebral nature of appellate work. I'm not the kind of lawyer who can jump up and yell "Objection!" in that split second between the time the question is asked and the answer given. But if you need someone to write a brief on why the judge was wrong in overruling that objection, I'm your man.
I thought I'd mention within this subsection a couple other things that aren't officially work-related but are in the same ballpark. First, as I've mentioned, I've been blogging over at Appellate Law & Practice, covering a couple of circuits' opinions. My last few posts are here and here (the best one) and here. For anyone searching for substantive summaries of stuff from the courts appellate, the whole site is well worth checking out. I can say, however, after having blogged there for a bit, that my Blogger v. TypePad dilemma has been firmly resolved in favor of Blogger. I don't like using TypePad. I know a lot of TypePad devotees speak glowingly of that format as if its superiority were self-evident, but I must be missing something, because I just don't see it. I don't want to argue the point; it's moot now. But other than the purported reliability concerns of Blogger (which we don't suffer), no one's been able to give me anything more than conclusory, unsupported claims of TypePad's superiority. Sorry.
Also, via the AL&P blog (via Ernie the Attorney), I saw this most excellent guide to writing appellate briefs by Andrew Frey and Roy Englert. There's some really wonderful advice in there. OK, I'll toot my own horn and add a link to my list of ten don'ts for appellate advocates. One tiny quibble with the article, though: The authors, in discussing bottomside briefs, write that "[t]he bottomside brief writer has the disadvantage of not being able to introduce the judges to the case and the issues; they will read the topside brief first." That's not always true. The materials in a case come to our chambers from the clerk's office not piecemeal, but all at once, after all the briefing is complete. So there's no particular reason we can't pick up the red appellee's brief first. In fact, if the blue appellate brief starts out as bad as some of the bad examples in the article, I will drop it and pick up the other just to try to find out what's going on in the case. I find this is often necessary when appointed trial counsel is writing the appellant's brief in a criminal case as if it were a jury sermon. The government attorneys usually -- though not always -- do a pretty good job on their side. Plus, conceptually it's sometimes easier to see a reiteration of what the district court did (because the appellee will want us to uphold that), and then see a critique of it. If the blue brief doesn't do a pretty good job of explaining what happened below, it's hard for me to understand why it was wrong. So, it's vital for the topside brief to explain well even the things it disagrees with, and it's important for the bottomside brief not to overlook the opportunity to be the "brief of record," i.e., the one I trust to tell me what happened.
What I am doing at home: Over the weekend I did a lot of sleeping. I got home from my CLE on Friday evening and laid down to take a nap. I woke up a few times, but at some point decided to call it a night and slept straight through until Saturday morning. I really needed it. For the last few weeks, I've been the first one into the office; this, after a month or so of getting in a good twenty-thirty minutes later than everyone else (except the Judge). I wasn't late, I was just later. No one was waiting on me to start the day. When my presence is necessary, I really try my best to be there on time, and I never have that "what's the big deal" attitude -- I'm genuinely apologetic if I'm late. But I also don't like it when people say stuff like "meet at 7:30" and then get upset when I show up at 7:30. I'm not one of those nuts who says that "five minutes early is on time." If you want me there at 7:25, say so.
I'm also trying to plan what I'm doing over the holidays. I get a decent amount of time off, but it looks like I'm going to have to drive home, because I can't afford a flight, so that's going to cut at least a day off my vacation. And, I'm trying to inch along in my job search and my date search, but there's no real progress to report from either. That reminds me of something I meant to post about when I did the "Lamentation" update last week. I sort of tried out e-harmony.com a few weeks ago. I don't like it. First of all, it's complicated and time-consuming. Second, it's expensive (I have not subscribed because it's way too pricey for me). Third, you can't see pictures or full profiles unless you do sign up and fork over the cash. Fourth, I don't trust their much-vaunted matching matrix. I answered their questions like, How important is faith to me, and How much do I want to share my faith with my match, etc., with "zero" or "not at all" or whatever applied. I simply don't think I would be very compatible with a very religious woman. And yet two of my first four matches, as calculated by their "scientific" system, ranked faith as very important to them -- one said it was the thing she was most thankful for, and another said it was among the things she couldn't live without. That's all fine and good for them, but I can't figure out why e-harmony thought we would be a good set, unless they see this purely as a numbers game, and a fundamental difference in views on faith is no less a deal-breaker than if the difference were that one is a little bit country, the other a little bit rock 'n' roll.
What I am reading: Still working on the two books linked in the right-hand column (click to your holiday book-shopping via us -- it gives us kickbacks!). Lucky has been incredibly powerful and moving and so worth reading. I was looking for something on my bookshelf the other day, and my eye spied the Best of the Oxford American anthology. And so I sat on the floor and read from it for a bit. I'm so looking forward to that magazine's triumphant return. Oh, and Gregg Easterbrook's column today is a gem.
What I am watching: This and that. A little football as the regular season ends, a little basketball as the regular season begins. Since I've moved so far away, I hope I'll still be able to see the teams I want without having to pony up for ESPN's "Full Court" package. The way my house is designed, I can sit at my computer desk in one room and see the tv in the other through the hallway. So a lot of times when I'm surfing the web or blogging, I turn on something just to have it going in the background. The other night nothing was on worth watching except Boogie Nights, so that was going (and going). I didn't pay attention after it ended and Looking for Mr. Goodbar came on. What an interesting juxtaposition! Goodbar makes my top-ten most depressing films list -- I don't mean sad or sappy, I mean despairing for humanity depressing.
Also, I've watched "South Park" for years now, but last week's episode was...out there. I think it was Paris's coughing fits that really made the episode special for me. Wow. And, I managed to catch "Johnny Cash in San Quentin" on the Trio network. It was ok, but had too little Johnny and too much philosophizing prisoners.
What I am listening to: Still Sherry's mix at home and the book on CD in the car and a little Lyle in the office.
What I am thinking about: My job search, which I've been asked about something like half a dozen times this week, and for which I have no answers and precious few leads. Also, since we're in the midst of the fuss over the BCS, a thought. I have opined against a Division 1-A college football playoff, so I won't get into that again now. But I have always liked the bowls, anachronisms though they may be, and I endorse the idea mentioned by Easterbrook, linked above, and ESPN's Pat Forde: go back to the old bowl system and let slip the havoc. USC, Oklahoma, and Auburn would be playing in three different bowls, and then the fun would really start! Speaking of ESPN, why is Stacy Pressman no longer listed on their masthead of "page2" columnists? I mean, I know it's been over a year since she's written a piece, but that doesn't mean we don't still love her!
What I am not thinking about: For a while last week, I was thinking about making a comprehensive overhaul of my blogroll. Now, I'm not thinking of changing it, and not only because of the wacko response to this post of mine mentioning some minor changes. I guess blogrolls serve different purposes for different bloggers. Some try to be fairly comprehensive, some try to be fairly exclusive, some don't have one at all. For me, my blogroll is to some degree an endorsement of the sites linked, but mostly it's a tool for my use -- I use those links to visit the blogs I want to read. Originally, the placement was a loose approximation of my affinity for the blogs and how often I check them. But that's never been absolute. For example, Ken Lammers's brilliant CrimLaw is a blog I adore, but it's rare for me to check it more than once a day. Others are fine blogs (I don't link to any I don't like), but maybe I don't get as much out of them. Still, I might check them several times a day just because they post a lot. Over time, things changed, including my opinions of blogs, how often I visit, and of course lots of blogs have begun or ended since we started BTQ. But I'm a creature of inertia, and I got used to the placement of certain blogs. So when I would add a new one, I might throw it in somewhere, without regard to where it was in relation to others, and leave the older blogs unchanged because I knew where to find the link. And, I usually didn't announce any of this unless I didn't have anything else to write about. Oh, and sometimes certain blogs didn't move because it took me a while to figure out the coding for the first and last blogs of those sets. I think it is probably safe to say that I have a special affinity for the blogs in the top tier, but (a) I really enjoy reading lots of the other blogs, and sometimes I read them even more often than that first set, and (b) sometimes placement in that first set is a matter of affinity plus time, so just hang in there. So please don't worry about where your blog is on the list. If it's there at all, I like it and read it. And if it's not, maybe I just don't know about it, or I'm using the link on Fitz's roll. Now, everybody's happy.
A thought: I usually have a shout-out or piece of trivia or something here, but nothing came to mind, so I'll just mention that today is the anniversary of Pearl Harbor, and I just hope it's remembered for something more than the cheesy movie Fitz quoted. Cue appropriate music, and fade to black....
Instead of putting my choices for cheesiest movie lines in the comments to Milbarge's post I decided to post them. Enjoy. Drum roll, please. . .
5. Tie. Keanu's "What would you do? What would you do?" line from Speed and "I am an F-B-I agent!" from Point Break.
4. The "O Captain, my Captain" scene from Dead Poets Society.
3. From The Program, quarterback Joe Kane's line "It's time to put the women and children to bed and go looking for supper." Huh? Cheesy and stupid.
2. "It's turkey time. Gobble, gobble." from Gigli.
1. But my vote for the cheesiest line would have to go to Affleck and Hartnett at the end of Pearl Harbor:
"You're gonna be a daddy."You're lame. No you are.
I saw this list of the cheesiest movie lines, as voted in a survey. It's nice to see people finally realizing how utterly craptacular Titanic actually was. And it's nice to see Patrick Swayze getting some notice. I'm surprised Keanu doesn't show up somewhere (my pick of his: "Whut wood yooou dooo?" from Speed). But what really shocks me is that enough people saw The Postman to nominate a line from it. Anyway, your nominees are welcome in the comments box. I'm sure I've forgotten some good ones, although maybe it's like The Rock, which the memory of having seen I try to repress. And it reminds me of Fitz's hatred of the "quivering salute" used as the climax of so many military movies -- a move that would have to top the "cheesiest gestures" in film history list. Perhaps Fitz will expand on that if I call him out.
OK, have a shlocky day. Substantive posts coming eventually.
Tammi: "Hank, don't! Alabaster's a little guy, but he'll mess you up."
Hank: "No offense, but he's from Oklahoma."
Monday, December 06, 2004
Peggy, distressing over running for School Board: "Hank, the phone polls are in, and it does not look good. It shows Nancy with four votes, Minh also with four votes, and me with zero votes. Even if I increase my margin of error to five votes, I am still only winning by the skin of my teeth."
Sunday, December 05, 2004
Hank: "If Boomhauer wins his amateur race, he gets to drive the pace car on the same track as Dale Earnhart. Or, as you'd see it...Jeff Gordon. Ugh."
Bobby: "Wow! Jeff Gordon drives race cars too?! I thought he was just a cereal box model."
Sugar, Mr. Poon?
Stay of Execution
S.W. Va. Law Blog
Begging to Differ
Prettier Than Napoleon
The Yin Blog
Crime & Federalism
Is That Legal?
Frolics & Detours
Naked Drinking Coffee
WSJ Law Blog
Don't Let's Start
Stuart Buck Legal Fiction
Election Law Blog
Legal Theory Blog
Legal Ethics Forum
Ernie the Attorney
Bag & Baggage
Crim Prof Blog
White Collar Crime Tax Prof Blog
Grits for Breakfast
All Deliberate Speed
Adventures of Chester
College Basketball Blog
College Football News
Indiana Law Blog
Field of Schemes
Toothpaste for Dinner
Pathetic Geek Stories
Chuck Klosterman IV: A Decade of Curious People and Dangerous Ideas
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.
Furthermore, I reserve (and exercise) the right to edit or delete comments without provocation or warning. And just so we're clear, the third-party comments on this blog do not represent my views, nor does the existence of a comments section imply that said comments are endorsed by me.