Thursday, August 04, 2005

(Later-than-last post:) I win! Also, Powerblogs is the new place.

A big thank you to Howard Bashman for choosing my entry in his contest to find the dumbest possible question to ask nominee Roberts at his confirmation hearings. I'm a winner! Or a loser! Depending on how you look at it!

A reminder that my new blog address is still, and so please change your bookmarks/RSS feeds/ blogrolls/ names of your children to reflect this change.

And yes, I know Powerblogs sometimes acts weird and won't load; I'm looking into the problem, but trying again in five minutes should do it.

Howard's contest winner announcement is here, and my victory speech is here. Also, Chris is right: Righties should just Get Over It Already About the Gayness. We're not heterosexist, you are, and it's Not Our Problem if you see evil intentions behind every Bush, er, bush.

Thanks for the memories,

Eh N. (see you over at the new site at powerblogs!)

Friday, July 29, 2005

Change your bookmarks/ blogrolls/ RSS settings/ minds: New Address for U & PU

Good news! I've got my new blawg address, and it's going to be

So update your blogrolls/ rolodexes/ bookmarks/ etc.!

Actually, this is not likely to be the last post to unused and unusable at blogspot; this page will remain here as living archive and as a backup in case powerblogs is temporarily unavailable.

However, new posting should occur over there as soon as I work the kinks out.

Feedback on appearance and usability - there should be none, Recall the Name of the Blog - is important to me. No, I don't really mean "utility," that'd be how "useful " the blog is to you, and I expect it isn't, mostly. But I want it to be able to be used, perused, abused, and amused by and through you, the readers. It's the difference between a book being literate (2nd meaning: the quality or condition of being knowledgeable in a particular subject or field; also see learned [2nd meaning; adjective, possessing profound or systematic knowledge; erudite]) as compared to being readable, ya know?

As an aside... not that I ever have those... I think the word "erudite" is much funnier when pronounced "air-you-ditty" than the way those stuffy prescriptivists would have us do it, don't you?

To sum up: new blawg address, this one will continue to exist but not as a going concern, please change your pointers and links to H tt p colon slash slash Unused and Unusable dot Powerblogs dot Com, at least as soon as it's up and running, and lemme know what you think.

Thanks to everyone who has commented or given me feedback. It wouldn't be worthwhile - indeed, it would not happen and would be extraordinarily frustrating and meaningless if it did - without you.

Eh N.
Sole Proprietor, U & PU Pty. Ltd.

Thoughts on the Bar; forthcomng posts; a word of thanks.

On the Bar exam

To those who have survived it: congratulations. In approximately 3-4 months (they're shooting for less than 90 days in Pennsylvania, despite a record-breaking largest-ever pool of applicants taking the test) you'll receive word (Pennsylvania applicants: look for the list in the Legal Intelligencer as well as the released list at that you are, or are not, allowed to practice law in your jurisdiction. Congratulations if you pass, and do not despair if you do not. Most people do pass, at least in Pennsylvania; check your local listings for specific information.

People do fail the Bar, and retake it, and most pass. You have seen the worst it's possible to get; you took the prep classes (I hope), you studied in misery and solitude and desperation, and you sat for the Bar. Doing it again is undesirable but far from uncommon.

On taking it itself, if you're wondering:
- Harder than you can probably imagine, the studying and preparation and sitting for a two-day multiple subject closed-book test of will
(unless you're a med student, in which case, this will all seem like whining)
- Easier than you picture, if you believe the hype. It is not the "hardest thing you've ever done."

Taking the SAT was hard. Taking the LSAT was hard. Going to law school was hard. The Bar is not hard. The Bar is a massive, difficult, unpleasant, soul-crushing task, but it is not *hard*. It's a "test of minimum competence." Follow the instructions, read the questions, prepare adequately beforehand, and you should pass if you are good at tests.

On the fact of relatively easier questions:
BAR/BRI warns its students that their scores are lower on the practice tests than they will be under testing conditions. This is because the Bar is easier than the practice tests.

The simple explanation is that the Bar examiners release bad questions, don't want or need them anymore, and that's what BAR/BRI and the others have to work with. You practice on the ones so poorly written, so badly planned, so unanswerable that they're available to the practice class folks. The Real Questions aren't that awful, that unfair.

Forthcoming Posts
I've been lax in posting lately, but I'm getting more used to the idea of regular, meaningful posting, and have some ideas in the back of my mind.

I plan to post about:
  • oaths. there was some good blog chatter in the blawgosphere about various pledges and oaths. I have a little more to add, and want to bring together those links in one space. I also had a great comment, thanks Anonymous #4, about the duties all attorneys should feel, the weight and responsibility of being "Esquire" in the post on that word. I have the sense that this is a theme I will return to: our duties, as well as our privileges, as lawyers.

  • Scalia. I keep promising this; it's coming, it's coming. It'll be my longest post yet, and it should be as cleanly written as possible so that it's at all readable.

  • Class actions. They're a funny old procedural mechanism, but they offer vast opportunities for abuse and redemption of the legal system. How are they used? What's wrong with them? What's right with them? What wrong decisions have been made about them? I don't know it all yet, but I want to explore some of these questions. On that note, anyone know of a decent blawg that focuses on Class Action matters? Overlawyered hits the negative every chance they get; Evan Schaeffer portrays the positive side in his kind of litigation. I want to be more general, and as balanced as is fairly possible.

  • Words, meaning, and language. We "do" words in the law; just as mathematics is the true language of science, words, English words, are "the language" of (American) law - except, as noted previously (the post on Esquire, among others) where it's foreign words, and except where science is the language the law must use, or where any other specialized subject matter with its own language must come in. Even where there's jargon, though, Law is made (and argued before and decided by) humans, who operate in ways that linguists (as well as, say, psychologists and sociologists) study. I'm interested in this last aspect. The brouhaha (love that word) over the use of the word niggardly (what an ugly-sounding word) for example: What does it mean to use that word, what impact on your effectiveness as an advocate or as a persuasive writer is there when people are focusing on it?

  • Roberts. He's been the focus of attention in politics and law for some weeks now. I've discussed him in comments on other blawgs, I've briefly described him, but I suspect that I have some organized things to say if I bring my thoughts to bear. And if I don't, this post won't happen.

As always, I welcome - indeed, beg for - comments about which way this blog should go. I've got some ideas, but this is primarily a communication tool rather than a traditional part of the Media. I can't have a conversation if noone else plays, even though there's no obligation to identify yourself in comments nor to check back to see if I've responded (or if anyone else has, for that matter).

And, for those of you who like to know this kind of thing, I'm moving to Powerblogs in the near future, thanks primarily to the suggestions of Mike of Crime & Federalism blog. Yes, I realize he's on Typepad. That's not the point. Thanks for the advice, Mike, and to everyone else (Sean Sirrine, the Volokh gang, others) who have given feedback or otherwise had useful posts recommending one or another of the various hosting services.

This blog will remain here as is, preserved, as an archive; I will be starting-over-with-links-both-ways on Powerblogs in the coming days and weeks. I hope you'll like the new Look of Unused & Probably Unusable.

Eh N.

Friday, July 22, 2005

WOTD: Esquire. Also: Fn. 4

In honor of all my friends who are pre-Bar (but about to take it), post-Bar (yay, we made it), and pre-Law (man, are you in for it), we present the Word of the Day:


Not the magazine. Although that's an interesting point you make, indeed it is.

Here's my favorite discussion of the word I've yet seen, over at JD Jive.

Short summary of the above: Everyone's down on the Esquire thing, even though it's shorter than Attorney At Law and is thus useful in identifying recipients of correspondence as Lawyers (unbelievably useful, when it comes to discovery disputes or privilege questions years and years down the line), and besides "Counselor" is trendy but oddly meaningless, and "Doctor" isn't really available, since there's already multiple kinds of Doctor out there and we're not really any of them. And you should avoid using Esquire anyway lest people think you are an ass.

Not that there's a governing body that regulates Esquire-usage. But if you make someone think you're a lawyer when you're not, Bad Things Could Happen (google search for Unauthorized Practice of Law).

My favorite part of that favorite discussion: when the Brit points out that Over There, everyone is an Esquire, by common courtesy, say on the Cheques they get from the Banque. Banke. Bank. Whatever they say over there, in their Auld English. Or should that be Olde? Or Eldritch? The Queen's Tongue, in any case, and isn't that an ugly expression.

Speaking of Royal Tonguing, which we weren't, who here has confirmation or disprove...itation... of the famous story of why Spaniards from, say, Madrid use the infamous "thetheo," the lisp by which a perfectly good word like Zorro or Zapato (or Zapatista?) becomes Thorro, Thapato, and Thapatista, respectively. And no, it's not Thatpatithta. [see the update, below]

My informants tell me it's due to a historical king, one with a Lithp, whose courtiers and noblemen and other hangers-on imitated, and thus you had a top-down linguistic change, much as the upperclass in England imitated the King or Queen in order to seem or sound socially Higher. [again, see the update] Then as the change percolates down, the lower classes (whatever that may mean) pick it up, and then everyone does... unless the educated and elite changes again, in which case it may take time for that change to percolate down. If it ever does; some social groups - well, don't say stagnate, but let's say have extremely strong and well-grounded phonological features, such that you see stable survivors of long-gone vowel shifts or word changes in discrete and insular populations. [this part is all true, it's the Spanish history that's suspect - or wrong]

Ha! I said Discrete And Insular! So there we are, back in lawyerland, for that's a direct quote from Carolene Products' Famous Footnote Four, see e.g. Answers Dot Com and Balkin article, for general background, not to mention Jack Balkin's followup.

...and also Supreme Court History, halfway down (text search for footnote)

... heck, just see for yourself (google results). Or you could just read the case and see (it's footnote four).

[update: see the comments for some corrections of my Spanish knowledge, and some generally useful information]

Thursday, July 21, 2005

Seeking: an anonymous blogger

[bumped, because she's been located; see update at the bottom of the post]

I'm looking for an anonymous blogger.

What's that you say?

Why bless you, young sir/madam. Yes, that's true, I am in fact _an_ anonymous blogger. In fact, I'm even An Anonymous Lawyer, or an anonymous blawger. All true. Yes.

How true.

What's that?

Oh. Right. My point.

I'm not looking for me. I wake up in the morning, brush my teeth, comb my hair, stare into my beautiful eyes in the mirror, then put on my flowing cape emblazoned with "Eh. N." and my red boots and...

Right, my point.

I read a blog briefly, perhaps a month or two ago. She was an anonymous blogger, an anonymous lawyer, and she had a template that looked, believe it or not, just like this one. That means she used Blogger to blawg for free. She was a NY Associate at an Unnamed Firm, and she had some sort of clever blogging name, indicating her thoughtfulness or her acuity or her literary sense or her devilish charm; I forget entirely.

I made a mental note to visit the blog again in the future, see if she had kept it up, if further developments had occurred, that sort of thing. From reading the Stankowski Report, Anonymous Lawyer, Phantom Prof, and Coyote Law among others I have become fond of anonymous blawgs that are well-written.

Alas, Evan did not take note of her; she was, he pointed out, one of those bloggers without a blogroll. The point he makes, I think, is that unless one blogrolls, even if comments are open, one is not in any sense a part of the blawging community. Blawgging? Blogging, ergo blawgging? It looks too ugly with two g's after a w; I declare it to be blawging, analogous to scrawling or trawling.

One may, in point of fact, be a member of the blawging movement, or even a supporter of and avid reader of blawgs; but unless one maintains permanent links, shows who the community is (I just joined a legally inclined weblogs ring, look down the right side of my blog after the other links), one is On One's Own. I put up a link to Evan, and to Volokh and to Kleiman, as soon as I got rolling. After all, Who Am I, unless I tell people What I Read?

So: a call for a blawger- one in particular. Have you seen her? Are you her (she? no, her)? Is she still working at Unnamed BigLaw Firm in NYC, does she still have Boyfriend and Cat, is she still living in an apartment? I don't actually care about her personal life, I'm interested in her writing. Anonymous Associate, where are you? Come back. I want to link to you.

sincerely, Eh Nonymous

[update: Found her! Or rather, she found me. Thanks, "Lawgirl," aka Opinionista, of I'm not sure if an opinionista is one who has opinions, and if opinionistas.blogspot should therefore be read as Opinionista's Blog spot, but I do know this:

You post, frequently. You write at great length, with little decorum. You are blunt, hilarious, and your screeds about filthy partners, unconscionable billable hours, and zombie-like associates make for fun reading... from a distance. I wouldn't want to be in that apparently hellish environment, the occasional positive feedback or no; I'll stay right here on the Light Side of the Force. See, for example, the other Lawgirl at On Firm Ground,, who is a 3rd year associate in a small firm.

Also: I notice that much like "anonymous" for blogging purposes, Lawgirls (and Lawgeeks and some variants) are pandemic in this part of the blogosphere. Are we so uncreative? Do we have so little to say with our chosen names? In my case, yes.

Eh N.]

Tuesday, July 19, 2005

Here's my guess about the President's announcement tonight: Clement's it.

Court speculation centers on female judge.

Thanks to a link... nay, two links on Howard Bashman's How Appealing, I now feel confident that my prediction to him will prove accurate:

I predictify that Edith Clement, formerly of the Eastern District court in Louisiana and the Fifth Circuit Court of Appeals, educated at Univ. of Alabama and Tulane Law, former Law Clerk to Christenberry of the Eastern District of LA, white female (see her biography unless it's overloaded, in which case, try google cache...) and double-Bush appointee, will be our newest nominee for Associate Justice of the Supreme Court.

My said predictification in no way obliges me to use, recognize, or consume crow in the event my prediction is, much like my previous ones, dead wrong in the light of subsequent events.

However, as I told Howard, I don't think Edith H. Jones is confirmable, despite her eminent qualifications, and so I think the Other Edith it will be.

Anyone care to state that I'm right or wrong? Time stamps will be honest.

[update: According to ABC news, I'm already wrong, and it's not even 9 p.m. yet. "Source: Clement Not Bush's Choice for Supreme Court." Well, thanks a lot, Associated Press. You've helped preserve my perfect record for predictions, at zero. Well, if I still think Jones is unconfirmable, and Clement's not it, and Gonzales is unlikely, that leaves a few female/minority/esteemed conservative intellectual candidates, plus the rest of the country. Ones I'd like to see: Maybe McConnell, maybe Luttig, maybe Roberts, certainly a genuine female or minority candidate who is less hidebound or doctrinaire or rigid or wrong than Scalia. If Scalia is Bush's model for diversifying the bench, I'm throwing in the towel. However, I suspect Bush is thinking more along the lines of Gonzales (although as I've said he's unlikely to pick him, in my [worthless] opinion) or Judges Janice Rogers Jones or Priscilla Owen.

Which do think it will be, now that I've been proven wrong about who I thought it already was? Well, if you stick out your neck, I'll stick out mine. Or more likely, I'll "forget" to post until after the announcement, and then declare that I was predicting them (mentally) all along.]

Who's In, Who's Out, and Who's Down

Let's start with the easy ones.

Down: General William Westmoreland, 91, WW2 hero and commander of U.S. forces in Viet Nam, at a retirement home in Charleston, South Carolina.

In: Dr. Lester M. Crawford, new permanent head of the Food and Drug Administration, after the Senate finally last night confirmed his nomination by President Bush, apparently by an "overwhelming" margin. I gather there was some controversy about the morning-after pill, and thus about abortion. This, folks, is where science and safety run head-on into immorality and social choices. That is, some folks make the social choice to hate women and hate sex, and they impose their immorality on the rest of us as best they can. The morning after pill is not abortion. It's contraception. Also, "life" does not "begin" at conception in any meaningful way. Life, as we now know, Begins at 30. (also see: "Life begins at 8:30"; "Life Begins at 50"; etc.)

Out: The New Harry Potter, wherein he is &-ed by the Half Blood Prince. Weekend box office for movies is not harmed (Willy Wonka), but apparently hundreds of thousands or even millions of people got started on the thick (several hundred pages shorter than at least one of its predecessors) book, as 8.9 million (ish) sales helped set a new record for mass buying.

Also Out: Larry Brown, sometime coach of the Philadelphia 76ers basketball team, may be done in Detroit as the Pistons "appear" to have finalized deals for his departure from the team.

Additionally Out: Andreas von Zitzewitz, who resigned from the board of Infineon Technologies in the last few days, is suspected of having accepted bribes or kickbacks in connection with a sports sponsorship deal.

Very, very Out: Eric R. Rudolph, unrepentent murderer and maimer of adult humans on behalf of unborn ones, was sentenced, unfortunately not to death. The bomber of the Birmingham, Ala. clinic, in an attack that left its director of nursing Emily Lyons half-blind and permanently damaged, made a fetching figure in the courtroom. The coward, sentenced to multiple life sentences already and with more to come for his attacks on abortion clinics, a gay club, and the 1996 Olympics in Atlanta, is a terrorist in the most literal sense. Rudolph, who thinks he knows what God wants, took God's Justice into his own hands and hurt 150 people, killing 2. The sinner, who believes his stance against abortion (don't protest it, work to minimize its effects, try to discourage it, or speak about it; instead, murder the people who enable it) was dictated by faith and by his God, will presumably rot for the rest of his life in prison, unless someone someday pardons this sleazeball. Mr. Rudolph's only redeeming act: informing law enforcement where his cached supply of more than 250 pounds of explosives was hidded in North Carolina, which allowed the safe disposal of the potential hazard to any other innocents who came near. For this act of cooperation, prosecutors had agreed not to seek the death penalty.

A few more words on Rudolph, and then I'll forget about him until the day he dies:

  • he was a serial bomber
  • he thought that abortion, which he likened to vomitoriums, should be opposed by deadly force, and was upset that "Those who attempt to save the lives of unborn children and who wish to promote a culture that respects life are now treated as fanatics, threats to American freedom." Because he respected life so much, you see.
  • he was a cop-killer
  • he owes over a million dollars in restitution to victims and families who will never receive anything from him

I am ashamed of you, Mr. Rudolph, but mostly I am glad that you are imprisoned now and will not be able to murder any more humans. Innocent, guilty, sinners or saved, all were imperiled by your bloodthirsty and inexcusable rampage.

Monday, July 18, 2005

A trademark comment! On a linguistics blog!

Insults! Insults and slurs and slang and labels! And reclaimed labels!

I read with glee Geoff Nunberg's comments on the disastrous decision by the US PTO (patent and trademark office) to reject the federal trademark registration application by the well-known and well-established group DYKES ON BIKES, a San Francisco-based group of motorcycle afficionados who have participated in public events in that city (and have spawned imitators and fans and clubs across the country) for years. See "Adverbial License" over at Two Language Log Plaza (I joke; I don't know the proper mailing address for the purely hypothetical Language Log Plaza).

Geoff takes some richly deserved shots at the PTO, at clueless attorneys or judges who stray into the field of lexicography and semantics without proper circumspection (he singles out Judge Colleen Kollar-Kotelly for her decision in the suit involving the Washington Redskins; since I haven't read the case, I can express no opinion on the merits of her opinion).

The post is most worth reading because Geoff drops in some thoughtful questions for the reader, such as "What if the Family Research Council" got ownership of the Dykes on Bikes trade name, and tried to use it on t-shirts with profits going to their (anti-gay, anti-family, anti-research) agenda? Interesting indeed.

For more "cursing," see this post here.

Becker - Posner blog steps into the Gay Marriage debate - with reasoning

Over at Becker - Posner blog there are a pair of posts, the one I linked to by Judge Posner called The Law and Economics of Gay Marriage - Posner and another by Prof. Becker called On Gay Marriage - Becker, available here.

The nice thing about the Posner one, at least, is that it argues as I have: marriage is an institution, one that is traditional in the sense of utterly malleable as society's needs and nature changes. It also makes the point (sensible, to me) that outrage based on unreasoned prejudice is potentially not something that society should weigh when making decisions that affect everyone, or that affect minorities in particular.

Outrage, Posner says, can't simply be ignored. Judges in particular should not court outrage by rushing out ahead of innovation by legislators. I happen to disagree; Brown v. Board was the right decision to make, even if as I have argued it was arguably wrongly reasoned. (Along that line, see Jack Balkin's blog about his new book, What Roe Should Have Said. Kudos to him for a pair of snappy book titles. These are edited by Balkin and include various "opinions" written by some very smart people. The Roe one in particular looks worth a look; it's got a scathing dissent, various fascinating concurrences, and lots of healthy debate (through opinions, not in the form of actual bickering). Put it on your list... after perhaps Harry Potter.)

So: Becker-Posner posts, worth reading. Balkin's book, also worth looking into. Also check out both blogs; they may any of them be wrong, but they're all very very smart about it.

Saturday, July 16, 2005

Index: get your index here!

Hey, sports fans. (Yes, that's my favorite cheerful form of address.)

I wanted to take the opportunity to point out a link you may not have spotted, down the right hand side of my blawg. Right under the words "Previous Posts" there's a link to My Index. It's reverse-chronological; unlike the monthly archives or this main page or the Previous Posts list, the Index has all of my (now 35) posts in one place. It also has a short parenthetical description or commentary for each one. If you wanted to find one particular post, you could try using the Blogger or Google searches, or hope you could find it using guess-and-check. Or, you could just check the index, and scroll on down.

At this time the index has only one post, the chronological list. At some point I may also collect my posts by category or type, and create additional posts at the Index. In that event, I will bump up the main list itself so it will always show up first.

Wednesday, July 13, 2005

Hot hot news: Return to Flight, and other ephemera

What's happening Today, Right Now?

Space Shuttle Discovery is in its scheduled 3 hour hold before launch; as Countdown 101 will tell you, T-3 Hours and Holding typically lasts a couple hours, and during that scheduled hold the inertial measurement unit gets its preflight calibration, and the Merritt Island Launch Area (MILA for short) tracking antennae are aligned. This is the final series of holds; there's another important one at T-20 minutes, and yet another at T-9 minutes. Each one lasts at least a certain length of time, varying on outside conditions, specific circumstances, and technical decisions. Some of the earlier holds, such as the one at T-11 hours, which lasts 12-13 hours, last much longer than these last few.

In my only two experiences of waiting for T-0 liftoff, I was very frustrated by the tendency of the Shuttle Countdown Clock to inch downwards and then stop for scheduled or unscheduled holds. Both were for Shuttle Columbia's next-to-final launch; the first attempt was scrubbed due to a last-second (literally!) spike in a sensor reading in the hold; when the next window was attempted, lightning within 10 miles prevented the launch from ever getting closer than T-9 minutes, as I recall. They won't come out of that hold when there's a weather hold, is my understanding. I believe that the First Lady and First Daughter were present at the VIP viewing station at Cocoa Beach, like me, at that second attempt. I wound up watching the launch itself on a t.v. set at home.

The mission after that, Columbia was lost. [update: I mean, the next time Columbia flew. Columbia's next and final mission was STS-107. She was lost upon reentry with all hands aboard, see and for the whole sad story of February 1, 2003; it was the second total loss of a shuttle in flight and also the second such loss in my own lifetime.]

[correction to the update: Man, I can't get anything right. As the two above Wikipedia links indicate, Columbia's next-to-last successfully completed mission was STS-93, commanded by Eileen Collins, which launched in July 1999. Its final completed mission lasted from March 1-12, 2002, mission STS-109. The final, incomplete mission was STS-107, Columbia's 28th mission. The mission numbers are not chronological because each mission represents the objectives and tasks of a specific mission planned out in advance; the actual order of missions launched depends on such factors as technology (the parts, supplies, tools and payloads must be assembled together) and logistical considerations (which misison is more urgent, how can the limited and even scarce resources of NASA best be used). Even with duplication, multiple shuttles, and many many millions of dollars, this is still a shoestring operation. Launching three shuttles simultaneously (all three in orbit at the same time) would almost certainly overwhelm NASA's capacity to monitor, communicate, and coordinate the missions. We are not yet a real spacegoing nation nor world. We're still exploring our own local neighborhood. I should break this out as a separate post on Space exploration, shouldn't I.]

Eileen Collins, the first female shuttle commander, was on board when I watched Columbia's two aborted launch attempts. She successfully commanded the mission that took the Chandra X-Ray Observatory to orbit. Now she is about to begin another mission as commander, aboard the Discovery as NASA makes its heralded Return to Flight. Google news is full of Discovery coverage; NASA has a real live countdown clock you can watch, holds and all, at Launch Coverage (the other clock, running down to estimated time of launch, is counting down to six hours as I write this).

In other news: Bernie Ebbers is getting sentenced today. You remember him? CEO of Worldcom, which was a bigger fraud than Enron?

Subsidiary rant:
You remember Enron? It led to the effective demise of Arthur Andersen LLP? You remember Arthur Andersen? They were criminally charged with knowingly shredding their client's incriminating documents?

You might recall that the Supreme Court overturned their conviction on the important technicality that the jury charge was worded in a way that may have - may have! - allowed the jury to convict even if they did not in fact believe that AA acted with a sufficiently culpable state of mind, under the statute.

Of course, if AA hadn't been charged, they'd have been sued out of existence by Enron stockholders, suing on their own losses and on behalf of the company that should have been prevented from committing the vast frauds which made it so apparently profitable, and so monumentally criminal. If AA had been charged appropriately, it would have been convicted and its life as a corporate entity probably terminated. If AA's jury had been asked, "Are you convinced, beyond a reasonable doubt, that Arthur Andersen or its responsible agents had a culpable state of mind when they ordered the document destruction," people would not today be talking about the firm being "overcharged" or about prosecutorial abuse of discretion.

End of subsidiary rant.

So: Bernie Ebbers. Already found guilty of perpetrating massive fraud - I mean, really massive. Do you know how big $1 billion is? Can you imagine a fraud that size? That's not WorldCom. WorldCom was an $11 billion fraud. ELEVEN. Anyway, the poor victimized former CEO will experience a book, perhaps thrown at him, later today.

In other news... Karl Rove: still free, despite probable cause, based on the media coverage I've read, that he committed a federal felony - or possibly treason during wartime. I'm not the prosecutor, of course, but if Fitzgerald (who is) knows something I don't, I'd love to hear it.

The Lefty Blogs are, of course, all over it. The Righty Blogs are, with some exceptions, pretending that this isn't happening. The same sort of thing, in other words, each time an event of dubious importance involves these persons of merely political importance, and there's a political benefit for one side and a political cost to the other. The partisans line up, beat each other up, and then nurse their grudges until the next political football comes along. I'm not much better, but at least I know I'm doing it.

In that same vein:

Excellent article the other day by Judge John Carroll, Professor of Law at Cumberland School of Law, Samford University, about the curse of the correct jury verdict.

This article deserves its own post. Unable or unwilling to provide said post, I hereby offer you the link. Scrushy case suffers the 'curse' by John Carroll, Monday 04 July, 2005, the Birmingham News.

Read this article! See if it applies to you. Are we all hurting the legal system, by playing along with the (stupid, stupid) media? Read the whole thing!

[update: the countdown clock is now at 1 hour 54 minutes and counting. Exciting! We're headed on toward the next scheduled hold, currently Go for launch. Try to catch it on t.v. if you can!]

[update to the update: Scrubbed, of course. Today's launch is postponed, and NASA's most officialest explanation is that the cause is "an issue with a low-level fuel cutoff sensor onboard the vehicle. The sensor protects an orbiter's main engines by triggering them to shut down in the event fuel runs unexpectedly low. Mission managers are currently assessing the problem. More information will be announced as it becomes available. " The non-official countdown clock proceeds towards 3:51 pm EDT July 13, but when it hits that, nothing happens. The official clock reads 0h 0m 0s (those're zeroes, for those inclined to read unintended sexualist slurs from hours, minutes, and seconds) with a note that "today's launch has been scrubbed." To me, that means "try again later, maybe tomorrow, at the soonest." As of an hour ago, all the news media still thought it was a go. Therefore, this post is timely. Woot! Relevance.]

Also updated: Bernard Ebbers, ex-CEO of WorldCom, has been sentenced to 25 years in prison for his role in the fraud that ruined the company he "built into a Telecommunications Giant before his fall from grace." The largest U.S. corporate bankruptcy in history is your legacy, Bernie. The federal judge, Barbara Jones of the Southern District of New York, told you that you "w[ere] clearly a leader of criminal activity in this case," as she sentenced you. Shame on you.

Saturday, July 09, 2005

Placeholder 2: Things to write about in time

Sneak peek! Inside view! Behind the scenes! Background information! A look ahead!

Placeholder Post 2: Post topics I'll be working on in the comings weeks and months.

  • adoption by homosexual, lesbian, multiple married persons. I'm in favor of families, against child abuse, and appalled by arguments over gay/lesbian/etc. parenting that fail to return to the primary rule of all child protection and custody and support law: the best interests of the child are paramount. If you want to sample my views before I articulate them, consult Loving v. Virginia (and the Massachusetts gay marriage decision, Goodridge v. Dep't. of Public Health), Lawrence and Garner v. Texas (not to be mistakenly called Lawrence v. Garner, as so many, including me, do) and two novels by Robert Heinlein: Friday, and The Moon is a Harsh Mistress (containing positive depictions of group marriage and line marriage respectively).

  • bad opinions, bad outcomes, bad rules. Wickard, Raich, and certain rules regarding juries, like the one barring juror testimony except about the presence of extraneous prejudicial influence on a jury.

  • Scalia, of course. Megapost is in the process of slow assembly. Includes such criticism as accusations of fair-weather federalism, and fair-weather textualism

  • class, power and money. taxation. property. how law is made, and for whom.

  • grand unifying theories. Of what? Well, wait and see.

  • stuff i'm a fan of: paradigms as meme (or memes as paradigm); topology as a concept; puns as artform; sociolinguistics in practice.

  • evidence-based medicine, and why we see so little EB practice in law.

Expressions of particular interest of, or of outright antagonism toward, or utter incomprehension regarding any of these topics, or any other, will probably spur writing on said topic. So leave a comment, and have a say in what you see.

Friday, July 08, 2005

I change my mind: I think Rehnquist will jump

I commented recently that although "He may go today, he may go tomorrow, but I bet he'll wait until next week." From the buzz now online, I gather that my prediction, although well-founded, may be wrong.

Drudge, Fox News, and Novak all agree: it's possible that maybe conceivably Chief Justice Rehnquist is announcing his retirement today, after Bush touches down upon his return from the G8 summit.

Of course, the main thing we have to go on is rumors. Rumors, and innuendo. Our two main sources are rumors, and innuendo, and totally unfounded guesswork. Our three, three basic sources of information are rumors, innuendo, totally unfounded guesswork and hallucinogenic mushrooms.

Nobody expected the Rehnquist resignation!
/Monty Python

Calling London: hello, we love you.

That's a reference each to the Doors and the Clash, not in that order, and that's enough flippancy.

In this time of tragedy, in the wake of the coordinated terrorist attack upon London's commuters (and residents and peace of mind), I can't do better than did Kip, Esq.:

Prime Minister Tony Blair, addressing Parliament, September 14, 2001:

Murder of British people in New York is no different in nature from their murder in the heart of Britain itself. In the most direct sense, therefore, we have not just an interest but an obligation to bring those responsible to account.

Our sympathies to the victims and their friends and loved ones. And our best wishes, and thanks, to all our allies in the War on Terror in London and throughout Britain.

Well said. The NYT editorial, the piece by Friedman (flat world, flat world) about this being an issue in desperate need of Muslim involvement on the other side of the problem, this isn't enough. Attacks in London are not even "like" attacks on our soil. This is our civilization, our ally, our friend, our relatives, our ancestor-nation, our oppressor, our culture, our world under attack. Just because one has political differences with one's family members (and sister-countries, and fellow citizens) doesn't mean that their murder is diminished.

Terror's bad, folks, bad as it gets. Our current executive may be my least favorite American President, but his resolve to fight against and publicly denounce terrorism are not factors in that calculus. Today, let there be no divisive politics, let there instead be sympathy and succor and rage and measured response and unanimity of opinion: we the people of America, of the West, of Earth oppose this.

Wednesday, July 06, 2005

In defense of Roberts

I googled "Switch in Time" and you know? - even when I included Judge Pollak's name, the thing that popped out, Edward Lazarus' article praising Judge Pollak's reconsideration in the famous fingerprints case, see "Why judges rarely change their minds," was part of the problem.

There's a line of dialogue in a book that I like a lot, one that asks, "Was there ever anything that 'everyone knew' that ever turned out to be true?" [Incidentally: the response, in a hard-to-find short story titled "A Rose By Any Other Name," by sci-fi author Spider Robinson, ran along the lines of, "Ice is cold. Fire will burn you. Falls can kill you" and finished with the truism that "everyone knew to be true" that was in this case similarly true. (Don't bother me with dry ice or cool fire or safe falls; that's not the point). This is not one of those exceptions.]

Everyone knows that Roberts switched his vote, without further jurisprudential consideration, but based only the prudential consideration that Roosevelt was going to pack the Court and something had to be done. Everyone, in this case, is very wrong.

Judge Louis H. Pollak, acclaimed by the abovementioned E. Lazarus as one of the best federal judges in the country, explained why in a quietly delivered speech subsequently published at 145 U. Pa. L. Rev. 495 (1997). That's the 145th volume of the University of Pennsylvania Law review, article starting on page 495 to you non-lawyer types. Go check it out. I'll wait.

Now, if you can't go check it out (no subscription to the UPALREV or perhaps no hot & cold-running lexist/weslaw where you are), you should know this:

The speech, titled: PHILADELPHIA LAWYER: A CAUTIONARY TALE, contradicts what you are likely to have read about Owen Roberts. That is, you probably don't know of him at all, but if you'd heard the Switch in Time libel and believed it, this'll set you straight.

The cautionary tale (for such it is) has some high and low spots, as most lives will. The money quote is:
For almost sixty years Owen Roberts has been pilloried for the "Switch In
Time." I think that one who criticizes him--as I do--for the decisions
leading up to the "Switch" ought to acknowledge that the Justice deserves praise
for having had the gumption to change his mind.

Pollak says that Roberts was "right in Korematsu" - high praise, considering how monumentally, how awfully, how completely wrong the majority in that case (323 U.S. 214 (1944) - that is to say, the 323rd volume of U.S. Reports at page 214 and following, decided by the highest court of the jurisdiction, here the Supreme Court, in the year 1944) was - but had an undistinguished tenure on the High Court.

As a Philadelphia lawyer myself, who hopes to avoid becoming a cautionary tale, I leave you with Pollak's haunting conclusion to his section on the infamous Switch in Time/ court-packing episode, as he describes Roberts' writing, at Frankfurter's request, of an explanatory memorandum that demonstrated that his decision was in fact principled:
One can sense how grievously Roberts's later years on the Court must have
been shadowed by the "Switch In Time" calumny when one thinks about the loss
of dignity the Justice must have felt as he drafted that exculpatory memorandum.

Tuesday, July 05, 2005

Open Letter to Leo Stoller, Stealth (tm) Trademark holder

Dear Mr. Stoller,

I was fascinated to read about your courageous efforts to prevent others from infringing on your registered mark, in the NYT and on Language Log, a linguistics blog. I think the post at explains why your letter to the InterActivist Network was both advisable and linguistically frivolous.

After all, if you do not vigorously defend your perceived rights, they might be curtailed and diminished. Stealthy attempts to steal the fruits of your work should be countered with lawyers and a resolve of steel.The thing that makes me a bit sad, though, is that in Microprose's 1987 release "F19 Stealth Fighter," they brazenly used your word - in a context you never used it for, to my knowledge (stealth technology in the sense of radar-defeating military grade airplanes being a bit beyond the realm of air conditioners and insurance what-have-yous) - and made a huge hit. The game I discover was by famed game designer Sid Meier, and was released for the Commodore 64, 128, and later re-released under a different name when the designation of the real USAF stealth fighter became known, the F-117A (Nighthawk). I can't imagine why I grew up playing that game, and not on a Stoller-licensed F19 Stealth (tm) game. Perhaps because stealth is a generic adjective, not a proper trademark at all, in the field of hard-to-detect aircraft?

Still, this all makes me sad, and I wish you nothing but the best. Oh, and have you looked into the portable reference electrodes known as Stelth?

Flippantly yours, &cetera.

I tried sending the above to, but I don't think it went through.

Monday, July 04, 2005

On confirmation: in theory. 4th of July commentary.

Hi, sports fans.

I read in the NYT under Overview, an article titled "Senators Clash on Questioning a Court Nominee," By CARL HULSE and ADAM NAGOURNEY, Published: July 4, 2005... [link not provided because hey, if it's not going to be freely available, why link to the NYT?]

The Senators are staking out their positions.

Schumer says "All questions are legitimate." "What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time."

Sessions responds that (quote from article begins) the push for such detailed positions was highly objectionable and suggested that Democrats might be forming a strategy of trying to derail a nomination on the ground of withholding information. "You cannot ask a judge to prejudge a specific matter," Mr. Sessions said. (end article quote).

Now, these two Senators are talking right past each other.

The views of judges on matters of jurisprudence cannot possibly be beyond the reach of Senatorial inquiry. The prejudging of specific matters, it is fairly clear, is not one of the areas reached by Senators' questions. You can't ask, "If Bush v. Gore reoccurs in Florida state court in 2008, how would you vote then?" You can ask for analysis, criticism, or reaction about Bush v. Gore (2000), as you can of Brown v. Board, Roe v. Wade, and the nominee is free to answer or deflect the question ("I would vote to uphold the law of the land"/ "I cannot say without knowing more about the facts of the case in the controversy at hand" / "What do you really mean by your question, Senator? How can I answer in a way that doesn't blacklist me, because I personally disfavor abortion, based on my religious scruples...") as they see fit.

Mr. Session's observation is remarkably obvious: the Democrats are, indeed, positioning themselves to be able to properly bork (by which I mean, honorably reject a flawed candidate) a nominee who is not prepared to honestly answer questions in ways that stand up to scrutiny. As a sage philosopher once said, "Duh."

Judge Bork, with due respect to a smart man, was a raving loony. What decisions did he favor overturning? Not just Roe v. Wade, I mean what else? How far beyond the pale was that extremist? Bork was Borked, you may recall, by moderate Republicans, moderate Democrats, liberal Democrats, and, I fervently hope, everyone else in the Senate who knew that this jerk should never have been seriously considered, let alone nominated.

Bork's a self-made martyr, an uncooperative zealot who would not have been a good Justice. I'm willing to hear different, and I'd be willing to hear him speak his side or debate his position, but I'm tired of hearing about him as an example of, well, anything.

"The Democrats started it" - please. Fortas was probably disqualified by the ethical accusations - as should Clarence Thomas have been, his intellect aside - but the borking began long before Bork. And it wasn't "the Democrats" or "the Republicans," necessarily. Democratic nominees were blocked, black judges were rejected on the basis of race plus politics (Senator Helms, I'm thinking of you), and this is an old, old game. Look back to the acrimony in the 1790s. It's an American tradition.

In theory, I'd love to have the most able, brilliant, compassionate, deft, eloquent, fair (I'm done with the alphabetical list now) and generally outstanding Supreme Court nominee possible. In practice, we'll get whoever's highest on the President's list who is confirmable. May that approach as closely as possible the person whose qualifications I described.

Happy Fourth of July to you all, happy Filipino-American friendship day to readers in or from the Philippines, happy anniversary of Alice's Adventures in Wonderland by the Rev. Charles Lutwidge Dodgson (aka Lewis Carroll) - see also This Page at Wikipedia (July 4), This Day in History at the history channel, and of course my favorite Scope Systems (not to be confused with Snopes), with AnyDay in History, which for today's date (whatever it may be when you read this) is here. I'm not sure what Scopesys does, but they have a webpage here. They've been maintaining the AnyDay page for years and years, and so a shout out to them.

Happy Independence Day, America.

Sunday, July 03, 2005

Blogs worth noting

[updated and bumped]

Blog review #1

This post is a place to hold reviews of certain blogs. There may be older/better/more interesting blog, but I like the assignment: investigate a blog, consider it, weigh it, and blog about it. With an arbitrary ranking on a scale from 12 to W.

Magic Cookie (see, it pays to comment). A prelaw blog, tagging itself as "prelaw stories with a healthy dose of nonsense." The proprietor and main contributor, Chickenmagazine is a software-developer turned 1L heading to HLS. It's not uncommon to see Harvard student bloggers, see the previous Most Famous HLS student blogger (not that he's less known, but he's dealing with summertime and NYC and, perhaps, the Bar exam now), but I don't remember the last time I saw a blogger who hadn't even arrived there. Good luck!

The blog itself has lots of book reviews, musings on words, and reflections on entering law school. Godspeed, chickenmagazine.

Arbitrary ranking: M, although a vote of 17 was also considered.

Kip Esquire. A stitch in time saves nine, but haste makes waste. An excellent pairing of opposed aphorisms; I like, "Absence makes the heart grow fonder, but familiarity breeds contempt." Kip Esq. is a libertarian (he says so himself), and in his own words is "a lawyer who doesn't practice, an investment banker who does no deals, an academic who doesn't teach, and a policy wonk who belongs to no think tank. He's 38 and lives in NYC." I like the threaded nature of the posts; each one refers to the previous ones in its own category. A feature of powerblogs, I surmise. He also makes his blog categories easily searchable via a list on the right hand side; this is an excellent idea, again possibly a powerline thing, and I've seen such categorizing done slightly less well on, for example, Evan's blog and Jeremy's weblog. This is the best way to do it: on the front page, no-clicks to get to it, simple and clear descriptions. Good one.

I like Kip's insightful and occasionally biting posts on gay rights; his post here fairly drips with scorn for CA Atty. Gen. Bill Lockyer, and makes the excellent point, "Which do you think gays would prefer -- a prompt 'no' or a delayed 'yes'?" This makes quick work of the usual and utterly tired tripe about a prompt, but not necessarily favorable, response being owed. Thanks for the speedy service, too bad you screwed me, have a nice day? I think not.

I think Kip's post on the O'Connor resignation aftermath is fascinating. I can't believe anyone was stupid enough to suggest that O'Connor can't decide when she wants to step down (time of her choosing, when the Court's not in session - as has become standard practice) on the ground that it "strips the President of his power to make a recess appointment." The main reason this is idiocy is that her timing and phrasing (I step down, as soon as my replacement is confirmed) follows her duties to the Court and the country, and the President still _can_ make a recess appointment. He just can't do it until there's a vacancy to fill, and he apparently won't have a vacancy while the Senate is not in session. He doesn't lack the _power_, he's going to lack the _opportunity_. Kip's right, and the person who suggested it is, in my opinion, foolish. Good post, Kip, and I'll be checking back.

Arbitrary ranking: Q.

White Collar Crime Prof Blog (is it one adjective and four nouns? or one noun and four adjectives?). In any case, it's Peter J. Hanning and Ellen S. Podger's blawg, one of the members of the Law Prof Blog Network (I prefer the term Prawf, for lAW PR[o]F, but I suppose one could be too cutesy, couldn't one?), and they have a neat summary of the significant cases in which O'Connor's participation, and thus departure, are of note to White Collar Criminal Law afficionados. Court-watching is ever so much fun to us Judiciary Groupies, and so it's nice that Peter and Ellen are helping out with commentary that'll give us outsiders and observers more to chew on.

Arbitrary ranking: B+.

Crime and Federalism, starring Mike, Norm, and a parade of horribles. Court news and opinions are their bread and butter; federalism (meaning limited federal power, and preserving some state powers- like, the ones that are supposed to be in this our federal system) and crime are the subjects. This blog is always on the ball, thanks to the rapid-response efforts of the "recent law school graduate, and experienced criminal defense/civil rights attorney" (the aforementioned Mike and Norm) who co-blog at C & F.

Crime and Federalism has a great variety: recent decisions and why they matter; other legal developments in the news; discussions of judicial philosophy (one of my favorite topics, as you may gather); and occasionally, posts from the field with absolutely grabby titles (see, e.g. Is Masturbation relevant).

Mike and Norm are nice fellows, as we know from their generous and thoughtful comments to your host, and I look forward to reading them in the future.

Arbitrary ranking: C and F.

Ninomania. A fellow blogspotter. I stole his blawg title to make a point, in Ninomania this isn't. Ninomania is Prof. David Wagner's blog, out of the Regent Univ. School of Law, but it "does not reflect the views of Justice Scalia, who doesn't know me from Adam, or of Regent University, which does but is not such a schlemiel as to take responsibility for my views. " Funny stuff.

While I can't, as I may have indicated, sign onto the Ninomania agenda (whatever it might be... and can you imagine it not being sinister? :) ), I do appreciate the clever and informed commentary. See, for example, Kelo: O'Connormania, for an implicit admission that "Our Hero" is sometimes on the wrong side of a decision, and a paean to O'Connor's reasoning in that case, not to mention Thomas', which I have admired as well.

David's a bit of a non-liberal, but I'm sure that it would still be pleasant to chat with him; he's clearly a thoughtful guy. So long as he doesn't call me a member of the Death-Left, of course. What is that, anyway? I don't support capital punishment in practice at all, and very seldom even in theory; I think abortions should be disfavored- or at least not used instead of the other forms of contraception, which should be freely available and universally taught and encouraged in the public schools, starting early, at... well, after conception, anyway. Or rather, before it. You know what I mean (I hope). But, personally, I think the morning-after pill isn't abortion. Not even close. Contraception includes, in my mind, preventing implantation in the uterine wall. If you disagree with me on that... are you a doctor? Or are we talking pure faith here?

Arbitrary ranking: N.

To be posted as time permits:

Reviews of the other bloggers who have left comments.

[note: arbitrary really means it. If I were an administrative agency, I would _flunk_ APA § 706(2) review here.]

Friday, July 01, 2005

A letter to Oyez: O'Connor's legal philosophy

(I said I hate crossposting, see my post regarding my Guest Post at Evan's blawg (available here), but this e-mail was too good not to put up for folks to read and/or respond to)

To: Oyez
Re: Sandra Day O'Connor biography, available at


I don't mean to bug you, you must be busy -

Reading the Oyez page on O'Connor's biography (nice, well done, interesting and informative), I was struck by your "difficult to define" language about her core legal philosophy. I know that this is received wisdom of the legal academy, but I can't help but find it wrong.

Just as Thomas's legal philosophy could be summed up in three short propositions:

1) the text governs. if the text is mistaken, stick with the text; it can be corrected. if the text is ambiguous, check the structure of the whole. If the prior understanding of the text is mistaken or ahistorical, correct it.

2) original intent governs, and if current practice or understanding is inconsistent with original intent, it should be overruled.

3) stare decisis should be applied to cases that are rightly decided, and not for cases which are not.

[#3 is like the modified agency deference standard, whereby an agency's correctly reasoned decision will be upheld and a wrongly reasoned one won't- which is to say, absolutely no deference whatsoever, but it makes them feel better if their decision is upheld.]

[#3 is also implicit in #1 and #2.]

Similarly, Justice O'Connor's precepts could be summarized in, I would guess, no more than three axioms.

One would be, Each case is to be decided under the facts and circumstances presented by the controversy itself.

Number two would be, Neither the expectations of society nor the impact upon all present and future parties may be disregarded by an honorable judge.

And number three might be something like, The clear words of text should govern, unless they are not clear due to the clearly expressed intent of the legislature, and neither superficially clear words nor expressed intent may overrule the demands, explicit and implicit, of the Constitution, as correctly understood.

Her views on the effect of consensus, national or international, are not, I would guess, part of the axioms, except insofar as they inform #3.

I hope this was interesting or useful.


Eh Nonymous

[update: I notice from this article by Steve France that Sunstein had already commented on "the theory of no theory" that he called Minimalism, and praised O'Connor for holding it. I see also from that article that Posner warned that such so-called minimalism could lend cover for wedge decisions, such as in Romer v. Evans (now overruled). Now, I thought that most wedge-decision-producing cases were brought strategically as a way of accomplishing social change; I _want_ those to be decided minimally, but compassionately, and yet with attention to the structure and text of the Constitution, but also some leeriness of applying original intent, but also without going overboard for softheartedness for individuals, states, or the Federal Government, etc. etc.

I also note that Posner uses the Sounds-Good style of Judicial Pragmatism, see generally Howard's questions for Judge Posner in his 20 Questions series, "20 Questions for Circuit Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit," published in December, 2003. Pragmatism, as I say, sounds great, but I worry that a judge could be too pragmatic and lose sight of certain fundamental, and in my view irreplaceable, aspects of judging: doing the hard thing, forcing the powerful to lose just as the weak sometimes must, coming up with the distasteful but correct solution, and wrestling with the difficult. Judge Posner makes it look easy, and he's a very very bright man. I'm just not as confident as he is that he's always right. Still, he doesn't get reversed much. It's hard to reverse what you either can't argue with, or don't want to. So, point in his favor.]

O'Connor's out

Justice Sandra Day O'Connor, having served for 24 years on the Supreme Court of the United States, resigned this morning, July 1, 2005, setting off a summer of controversy over President George W. Bush's nomination to replace her. Howard Bashman has collected news links at How Appealing; check SCOTUS blog and, well, every other form of media known to humanity for more.

Justice O'Connor's biography at findlaw, here, lists her prior positions, including Maricopa County (Phoenix, AZ) Superior Court, Arizona State Senator (including Senate Majority leader from '73 to '74). She was also a member of Order of the Coif and was on Stanford Law Review's editorial board.

She served as Assistant Attorney General for the state of Arizona, from 1965-69.

These positions gave her a rather different background than most of her colleagues on the bench; few were state court judges, and only two others were state attorneys general or assistant state AGs: David H. Souter, who was Attorney General of New Hampshire, as well as an Associate Justice of the NH Supreme Court; and Clarence Thomas, who was assistant AG of Missouri. Most importantly, she was a trial judge, giving her a very different experience from those of her fellow Justices who had been in the practice of law, taught law, been in government, or been appellate judges only before their elevation to the high court.

Justice O'Connor's joining of, and sometimes carefully circumscribed concurrences to, 5-4 majorities gave her a powerful position as the least predictable, most "swing" vote of the Court for many years. The law of the land might have been what the majority decided, but if only four votes stood for a broad proposition and O'Connor's qualified "yes" was the fifth, then her opinion was the holding of the case, the narrowest most limited statement of what the case stood for. [Note: No, I do *not* mean to write "for which the case stood." It's awkward, it's unnecessary, and it is in no wise more grammatical. The idea of outlawing propositions that dangle is a recent invention having no place in modern English language and routinely violated by all writers, from the worst to the very best. Any rule flouted the paragons of English writing, not just for effect but routinely, and with no loss of comprehension is not a rule at all, not even a suggestion. Analogously, see Language Log on obligatorily split infinitives, and again here.]

Since Justice O'Connor decided each case, she said, on the facts and circumstances of that controversy as it arose, rather than having absolute and fixed and unalterable opinions on The Law which would be applied without fail to the case before her, however unreasonable or cruel the outcome (cf. Clarence Thomas, a man of such rigid rectitude that he has almost never changed his mind at oral argument; a very brilliant man, but not one given to waffling), she was often likely to vote one way in one case and the reverse in the next. This gave her unpredictability, as noted above, but also opened her to accusations of inconsistency, particularly from Justice Scalia. Since O'Connor's pole star and guiding mantra was "decide each case on its facts, not on one's prejudices or on a set of facts not before us," she was in her own way just as principled, just as fixed as Justice Thomas. Predictability of results is no virtue when the outcomes are *bad*, I would argue. Justice Thomas does not concern himself as much with the moral values of positions, more on their legal justification. It is hard to fault him for doing so, but I admire Justice O'Connor's attention to and praise of judging with attention to morality. By this I most definitely do not mean the position of the Scalia dissent in Lawrence, which was a model of biased judging (in response, I can only suppose, to what he perceived as similarly unprincipled reasoning).

Judging that takes into account the effects on society is no more active than is judging with utter disregard for the outcomes. It is merely that the one can be attacked as unethical, while the other can certainly be criticized as immoral.

I welcome comments, as usual. Civilized ones only; rants will be punished by means so fiendish and violent I shudder to contemplate them.