Monday, October 31, 2011

Tell me, what were their names?

Brad DeLong, who has been chronicling World War II at his blog, notes that today is the anniversary of the sinking of the Reuben James by a German U-boat. 44 men survived out of 159 after the destroyer's bow was literally blown off (via):

The song by Woody Guthrie did something to preserve recollection of the attack (see lyrics). And yes, the internet will tell you their names.

Remarkably, the U-boat captain in question, Erich Topp, survived the war, and indeed lived until 2005. It must be said that escorting war materials to the UK was not a terribly neutral act; this undeclared war in the North Atlantic may have contributed to Hitler's decision to declare war on the U.S. after Pearl Harbor, since the countries were half at war already, or so it seemed to Hitler (oops).

Thursday, October 27, 2011

Secret case at MSSC?

We noted a while back the appalling facts in the case of a little girl whom the Covington County schools allowed, repeatedly, to be signed out by an unauthorized person who sexually molested her and then returned her to school to await his next visit -- or so the plaintiffs allege.

The state-court case brought by the parents is the one that popped up on the hand-downs list today:

Covington County School District, by and Through its Board of Education and its President, Andrew Keys and its Superintendent of Education, I.S. Sanford, Jr.; Covington County Superintendent of Education I.S. Sanford, Jr., officially and in his individual capacity; Covington County Board of Education, by and through its president, Andrew Keys; Andrew Keys, officially and in his individual capacity; Tommy Keys v. Jane Doe, a Minor, By and Through Her Next Friends, Daniel Magee and Geneva Magee; Covington Circuit Court; LC Case #: 2008-294C; Ruling Date: 08/13/2010; Ruling Judge: Frank Vollor; Disposition: Having considered the record, the parties' briefs, and oral argument in this interlocutory appeal, the en banc Court concludes that the circuit court's judgment is affirmed to the extent that it denied the appellants' motion for summary judgment; that the circuit court's judgment is vacated in all other respects; that this case is remanded to the circuit court; and the appellants shall bear the costs of this appeal. King, J., not participating. Waller, C.J., for the Court. Order entered.
We've bolded that part because, at least in our limited experience, oral argument in an interlocutory appeal is quite the exception.

One has to wonder what "other respects" were in the circuit court's order.

The online docket fails to pull up anything in this case, which likely means it's under seal, as is common in cases involving sexual abuse of minors. But we have never understood why the *docket* should be invisible as well, and we hope one day that the Court will change that practice. Protecting private information does not require denying the existence of the appeal.

"Oh look! I read books!"

In the course of checking judicial usage of the contraction "to've" (upshot: more casual than I'd thought), I found what may be Justice James L. Robertson's most pretentious opinion, Dycus v. Sillers, 557 So. 2d 486 (Miss. 1990).

The beginning of the opinion has to be seen to be believed:
This is a case about a fishin' hole. It lies in western Bolivar County near the River, and at birth was named Beulah Crevasse, though many have long called it the Merigold Blue Hole. People who can get there without trespassing on land want to enter and fish. Landowners and their long time lessee hunting club want just as badly to keep the public out. The relative scarcity of good fishing spots, Landowners' bona fide needs for protection of their valuable timber and water resources, club members' desire for undisturbed aesthetic and sporting enjoyment of the blue hole they have long thought theirs, the violent life of Old Man River, notions of fish as ferrae naturae, and, as well, the human penchant for confusing want with right, desire with entitlement, and the familiar with the necessary-these and more form important background forces driving this civil warfare which we are charged to channel within the levees of the law.

This is also a case about a people, the waters they fish, and a unique culture and lore. These form an ambiguous but real part of our life whose pulse is preserved in the product of our poets from the famous to the obscure.FN1

FN1. More often than we dare or can admit, law's lame language cannot convey the realities and mood of the matter the judge must adjudge. Compare McInnis v. State, 527 So.2d 84, 89 (Miss.1988); City of Clinton v. Smith, 493 So.2d 331, 334-36 (Miss.1986); Pharr v. State, 465 So.2d 294, 297-99 (Miss.1984); see also Flood v. Kuhn, 407 U.S. 258, 260-64, 92 S.Ct. 2099, 2100-2103, 32 L.Ed.2d 728, 732-33 (1972). Today's is such a case.

Many think fishing the most leisurely of leisure activities, the positive pursuit of the lazy. In describing his childhood in Yazoo County, Willie Morris recalls

We did cane-pole fishing, both to save money and because it was lazier, for we seldom exerted ourselves on these trips to Wolf Lake or Five Mile.FN2

FN2. W. Morris, North Toward Home 75 (1967).

It was a leisure to be consumed and cherished, a spot in the shade preferred, and whether the fish were biting was secondary.

When the biting was good, we might bring home twenty or thirty white perch or bream or goggle-eye; when it was bad we would simply go to sleep in the boat. FN3

FN3. Id.

But there was always a Miss Julia Mortimer, the local school marm, revered in time but then the scourge of every young Willie Morris, Miss Julia who'd “get behind some barefooted boy and push,” said Uncle Percy. “She put an end to good fishing,” FN4

FN4. E. Welty, Losing Battles 235 (1970).

Outside the home, we boys was more used to sitting on the bridge fishing than lining the recitation bench. Now she wanted that changed,FN5

FN5. Id. at 236.

Uncle Curtis remembered of Miss Julia.

Fishing is a part of the very life and being of many in Mississippi, as with Eudora Welty's enigmatic Billy Floyd, of whom “it was said by the old ladies that he slept all morning for he fished all night,” FN6 and who Jenny noticed when he walked down the street because “his wrist hung with a *488 great long catfish.” FN7 Ellen Douglas' Estella, who had just given birth said “Baby or no baby, I got to go fishing after such a fine rain,” FN8 the same Estella in whose fishing style Douglas sees poetry, Estella who

FN6. E. Welty, “At the Landing” in Collected Stories 243 (1980).

FN7. Id. at 240.

FN8. E. Douglas, “Hold On” in Black Cloud White Cloud 166 (1963).

addressed herself to the business of fishing with such delight and concentration.... She stood over the pool like a priestess at her altar, all expectation and willingness, holding the pole lightly as if her fingers could read the intentions of the fish vibrating through line and pole.FN9

FN9. Id. at 171.

Then there is Walker Percy's Anna Castagna, Binx Bolling's mother, who “looks like the women you see fishing from highway bridges,” FN10 who sits on the porch overlooking the water at Bayou des Allemands and

FN10. W. Percy, The Moviegoer 148 (1961).

casts in a big looping straight-arm swing, a clumsy yet practiced movement that ends with her wrist bent in in a womanish angle. The reel sings and the lead sails far and wide with its gyrating shrimp and lands with hardly a splash in the light etherish water. Mother holds still for a second, listening intently as if she meant to learn what the fishes thought of it, and reels in slowly, twitching the rod from time to time.FN11

FN11. Id.

Many Mississippians, including our own Chief Justice Roy Noble Lee,

feel that a person who has never ... angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook, has never lived.FN12

FN12. Strong v. Bostick, 420 So.2d 1356, 1364 (Miss.1982), quoted in Pharr v. State, 465 So.2d 294 at 298.

Still, some of us are like Faulkner's Lucius Priest who at age 11, when Uncle Parsham asked, “Do you like to go fishing?,” thought “I didn't really like it. I couldn't seem to learn to want-or maybe want to learn-to be still that long,” but said quickly: “Yes, sir.” FN13 Lucius, being led to Mary's fishing hole,

FN13. W. Faulkner, The Reivers 248 (1962).

sat on the log, in a gentle whine of mosquitoes.... Then I even thought about putting one of Lycurgus's crickets on the hook, but the crickets were not always easy to catch.... [When nighttime finally fell and Uncle Parsham returned,] “had a bite yet?” [Lucius finally confessed,] “I ain't much of a fisherman,” I said, “how do your hounds hunt?” FN14

FN14. Id. at 249.

Binx Bolling was of Lucius' mind, though it is doubtful they had anything else in common. “You know I don't like to fish,” Binx said to this mother.

“That's true,” she says after a while, “You never did. You're just like your father..... He didn't like to fish?” FN15

FN15. W. Percy, The Moviegoer 149 (1961).

And so of Preston Cunningham,FN16 even though his unwitting son, Carroll, had had a pond dug for him beyond the yard “stocked with bass and perch.”

FN16. B. Lowry, Emma Blue 34 (1978).

But even for those who warm to it so much more than Lucius and Preston and Binx, and maybe even Binx' father, fishing is not the central motion of our outdoor life but is always second fiddle to the hunt. Not quite the afterthought, it is the interlude, the escape, relaxation, almost taken for granted until you can't fish, not nearly so enobling or paradoxical as hunting the deer, with its ritual rite of passage of adolescence and loss of innocence as when the old half-Indian Sam Fathers “dipped his hands into the hot blood” and marked young Ike McCaslin's face teaching him humility and pride.FN17

FN17. W. Faulkner, Go Down, Moses 165, 350-51 (1942).

Perhaps it is because the fish is less like us-and more plentiful and more familiar, *489 it is not the centerpiece but the analogy, the simile, as Ike thought as the bear disappeared into the woods:

It faded, sank bank into the wilderness without motion as he had watched a fish, a huge ole bass, sink back into the dark depths of its pool and vanish without even any movement of its fins.FN18

FN18. Id. at 209.

Or Eudora Welty's “[m]uscadine spread under the waters rippling their leaves like schools of fishes.” FN19 Will Barrett's “knee leapt like a fish.” FN20 Gary, Larry Brown's lonesome night hawk, found Connie “cold as a fish” FN21 And from Beverly Lowry: Might have been pleasant. Looking at his white behind-the-ear skin. White as a cooked perch, Emma Blue wistfully thought after she had refused John Robert's offer of a ride to school.FN22

FN19. E. Welty, supra, note 6 at 251.

FN20. W. Percy, The Last Gentleman 187 (1966).

FN21. L. Brown, “Night Life” in Facing the Music 116 (1988).

FN22. B. Lowry, Emma Blue 19 (1978).

Fish furnish less pleasant images. Again, Welty, describing the house after the floodwaters had receded:

“That slime, that's just as slick! You know how a fish is, I expect,” the postmaster was saying affably to both of them, ... “That's the way a house is, been under water.” FN23

FN23. E. Welty, supra, note 6 at 248.

Mississippi's game fish are of many stripes, their personalities as different as our people. There are the bream, Nash Buckingham's “matchless little marauders” FN24, but the biggest, little bigger than the size of your hand,FN25 to any objective observer “the sweetest eatin' there is.” FN26 There are the perch and crappie, but little poetry about these.

FN24. N. Buckingham, “Jailbreak” in Game Bag, 165 (1943).

FN25. E. Douglas, supra, note 8 at 171.

FN26. See J. Autry, “Fishing Day” in Life After Mississippi 3 (1989).

Then there is the large mouth bass, Buckingham's “leviathans,” FN27 “placed in the waters of the South so that fishermen have a preordained reason for idleness and spending money.” FN28 Outdoorsman Jim McCafferty says of bass: “This savage fighter will attack the right crank bait with all the fury of a treed wildcat.” FN29 Fishing for white bass on the oxbow lakes in the Delta, McCafferty exaggerates only slightly when he talks of “his duels with bruising white bass tak[ing] on an image of a sheriff looking for the outlaws.” FN30 David Chapman Berry, who grew up in the Delta, encounters the bass and is moved to poetry:

FN27. N. Buckingham, “The Sally Hole” in The Tattered Coat, 55 (1939).

FN28. G. Morris, “Fishing”, in Encyclopedia of Southern Culture, 1221 (1989).

FN29. J. McCafferty, “White Bass Basics”, in MS Outdoors 8 (March, 1983).

FN30. Id. at 16.

Stump in the pond, stump in my eye, My fly pops inches from the stump. Bass, all wrist, roiling deep in thought, wedge from the bottom of the headpan, and buckling the surface under the fly, blur through their tunnel of scales, shattering the mirrory surface, the fly engorged, the fly, the fly leading the bass by the lip. I break their heads with the butt of the Buck knife. They stiffen shimmering. Scaling rakes the silver off mirrors-my raw eye a dump of shimmers? I eat fish to keep my head stocked. Some fellows refinish mirrors, but I eat fish to restore ponds. Don't believe it that life's only a matter of how you look at it. Smell my hands.FN31

FN31. D. Berry, “Bass” in An Anthology of Mississippi Writers (Polk and Scafidel eds.) 502 (1979).

*490 Finally, is the ubiquitous catfish, of the family ictaluridae, the blue, the channel and the flathead, of whom legends transcend the fact-fiction dichotomy. A gargantuan catfish bumped into Marquette's canoe, almost prompting the French explorer to believe what the Indians had told himabout the river's roaring demon.FN32 Huckleberry Finn and Jim caught a catfish that was as big as a man and “weighed over two hundred pounds.” FN33 Hodding Carter claimed to have “gigged a catfish that measured almost five feet in length.” FN34 Though still regarded rough fish, channel catfish farming has become the nation's leading aquaculture industry with Mississippi producing an estimated 200,000,000 pounds of farm-raised catfish a year.

FN32. Young, “Catfish” in Encyclopedia of Southern Culture, 378 (1989).

FN33. M. Twain, Huckleberry Finn 60 (1885).

FN34. H. Carter, Man and the River: The Mississippi 30-31 (1970).

The fisherman's tackle and gear vary widely, from the cane pole used to fish for bream and catfish. The legendary Kentucky reel is still the favorite of the bass fisherman.FN35 Brooks Haxton tells of jug fishing. “[Y]ou took gallon jugs. Empty Clorox bottles were the best.” FN36 Hodding Carter jugfished for catfish.

FN35. See Henshaw, “Evolution of the Kentucky Reel” in Outing Magazine.

FN36. B. Haxton, “To Be a Jug Fisherman” Dead Reckoning, 84(1989). Haxton's powerful poem reminds us of other realities of jug fishing for catfish and for life.

In jug fishing-to explain to the uninitiated-empty, gaudily-painted gallon jugs float downstream, each dangling a heavy cord and hook and smelly bait from its corked mouth. The fisherman's boat follows lazily. When the catfish strikes, under go jug and fish and both remain there until the fish's strength is gone. There both erupt into the air and the fisherman approaches to pull in his catch. Incidentally, you don't scale a catfish. You nail him against a tree or barn and-since he has no scales, but a heavy, tough skin-you skin him.FN37

FN37. H. Carter, supra, note 34 at 30-31 (1970).

The Encyclopedia of Southern Culture suggests a corrolation between the economic and social stature of fishermen, the game fish they pursue, and the method they prefer to use. At the bottom of the economic scale, the preferred fishing is catfish/bream by cork or bobber fishing/bait casting, bass/spinner fishing is the choice of blue collar families, bass fly-rod fishing of white collar workers, and artificial fly fishing for native trout is the preserve of upper income professionals.FN38

FN38. G. Morris, “Fishing”, in Encyclopedia of Southern Culture, 1221 (1989).

The point is belied by Ellen Douglas' ten-year-old Ralph Glover, hardly a child of poverty or disadvantage.

“I brought my gig,” Ralph said, as they all trudged across the levee toward the Yacht Club. “I'm going to gig one of those great big buffalo or a gar or something.” FN39

FN39. E. Douglas, supra, note 8 at p. 168.

Still few would deny Larry Brown's truth:

The rich have never seined minnows to impale upon hooks for pond bass. The rich do not camp out. The rich have never been inside a mobile home. FN40

FN40. L. Brown, “The Rich” in Facing the Music 38 (1988).

Not every Mississippi fisherman experiences what Mabry Anderson calls “the hypnotic lure of the outdoors.” FN41 Consider the Yocono River, Faulkner's Yoknapatawpha River, starkly seen by James Seay in his “Grabbling in Yokna Bottom.” FN42

FN41. M. Anderson, Outdoor Observations 166 (1977).

FN42. J. Seay, “Grabbling in Yokna Bottom” in Let Not Your Hart (1970).

The hungry come in a dry time
To muddy the water of this swamp river

And take in nets what fish or eel

Break surface to suck at this world's air.

But colder blood backs into the water's wood-

Gills the silt rather than rise to light-

And who would eat a cleaner meat

Must grabble in the hollows of underwater stumps and roots,

Must cram his arm and hand beneath the scum

And go by touch where eye cannot reach,

Must seize and bring to light

*491 What scale or slime is touched-

Must in that instant-on touch-

Without question or reckoning

Grab up what wraps itself cold-blooded

Around flesh or flails the water to froth,

Or else feel the fish slip by,

Or learn that the loggerhead's jaw is thunder-deaf,

Or that the cottonmouth's fangs burn like heated needles

Even under water.

The well-fed do not wade this low river.

Mississippi is “the only state with a season for ... [grabblin'].” FN43 Others compelled to fish are left by law and society no choice but to fish in such undesirable places as the ramp at Ellen Douglas' Lake Okatukla leading to the Phillipi Yacht Club.

FN43. J. Autry, “Grabblin' ” in Life After Mississippi 10 (1989).

Even in this terrible heat, at noon on the hottest day of the year, breathing this foul, fishy air, there will always be a few people fishing off the terminal barges, bringing in a slimy catfish or a half-dead bream from the oily water, raising their long cane poles and casting out their bait over and over again with dreamlike deliberation, ... FN44

FN44. E. Douglas, supra, note 8, 161-62 (1963).

Of course, mention of Huck Finn's and Hodding Carter's catfish tales suggests another inexorable feature of fishing, what Nash Buckingham called “finwhoppers.”

The worst of us get fed up and bored with pure, unadulterated lying. But a certain amount of rod and reel spoofing is absolutely essential to salve conscience, offset temptation and lend color.FN45

FN45. N. Buckingham, “Over the Brook Cedron,” in Ole Miss ' 111 (1937).

Barry Hannah tells us of water liars of another dimension in his story about “Farte Cove off the Yazoo River ... where the old liars are still snapping and wheezing at one another.”

“MacIntire, a Presbyterian preacher, I seen him come out here with his son-and-law, anchor near the bridge, and pull up fifty or more white perch big as small pumpkins. You know what they was using for bait?”

“What?” asked another geezer.

“ Nuthin. Caught on the bare hook. It was Gawd made them fish bite,” said Sidney Farte, going at it good.

“Naw. There be a season they bite a bare hook. Gawd didn't have to've done that,” said another old guy, with a fringe of red hair and a racy Florida shirt.FN46

FN46. B. Hannah, “Water Liars” in Airships 5 (1978).

Like tales are told at the Coffee Shop off the square in Clanton, Mississippi, where the folks talk “local politics, football and bass fishing.” FN47

FN47. J. Grisham, A Time To Kill 23-24 (1989).

Fishermen see a different world than the rest of us. According to Mabry Anderson, “Unless you are over forty years old and a bream fisherman, you probably think a cockroach is just a dirty black bug.” FN48 They humanize these unhuman-like piscators, often talking the fish into the boat. FN49 Lawyer Frank Wynne, a witness at trial, describing the contours of the Merigold Blue Hole, how the waters back out when the River is falling, lapses and tells of “a good fishing place” back where the waters come out of the woods and over the road. “I'll tell you what, you can go in there and catch a nice bass,” and through the cold record his smile and priorities are seen.

FN48. M. Anderson, Outdoor Observations 132 (1977).

FN49. E. Douglas, supra, note 8, at 171; and Anderson, Outdoor Observations at 161, 163 (1977).

The waters as well compete for bragging rights. The night before on what Doc had called “the best river dragging he'd ever been on,” William Wallace had said “There is nothing in the world as good as ... fish. The fish of the Pearl River.” FN50 But none is the source of more lore and awe than the Mississippi. David Cohn said in the Delta, folks “fear God and the Mississippi River.” FN51 Mabry Anderson said, “The Old *492 Man just rolls on and on and wipes out most of man's mistakes each spring when it charges right out of its banks.” FN52

FN50. E. Welty, “The Wide Net,” in Collected Stories 181 (1980).

FN51. D. Cohn, Where I Was Born and Raised 43 (1948).

FN52. M. Anderson, Outdoor Observations 41 (1977).

No man alive can bob about on its surface in a puny fourteen-foot boat when the gauge is showing fifty feet or more at Helena, Arkansas, without becoming a little more tolerant and just a little less sure of himself.FN53

FN53. M. Anderson, Outdoor Observations 41 (1977).

Still some see a flood a blessing, some like Luke Wallin's Watersmith and his sons Jesse and Bean and Robert Elmer who fish the Mock Orange Slough.

They waded in the muddy cool water up to their waists, .... On their first pass they got a bucketful of bluegills and a small catfish. They wiped the mud and sticks from the net to try again.

“Every time the river floods,” Paw said, “it brings us all these here treasures.”

“Sho does,” Bean said.

“I think it's fine,” Paw went on. “I think it's right nice of the old river.” FN54

FN54. L. Wallin, “The Redneck Poacher's Son” in I Mississippi Writers: Reflections of Childhood and Youth: Fiction 618 (D. Abbott ed., 1985).

This is a case about a fishin' hole, and the people who contest for it and care for it so variously, who are charged by the infinite to accept it in its ambivalence and antinomy. Such a fishin' hole is Lake Chatula in the far southwest corner of Ford County which

in the spring ... hold[s] the distinction of being the largest body of water in Mississippi. But by late summer the rains were gone, and the sun would cook the shallow water until the lake would dehydrate. Its once ambitious shore lines would retreat ..., creating a depthless basin of reddish brown water.FN55

FN55. J. Grisham, supra, note 47 at 11.

James Dickey has spoken of this connection between person and place, between man and a lake that once

... was deep flashing-

Tiny grid-like waves wire-touched water-

No more, and comes what is left

Of the gone depths duly arriving

Into the weeds belly-up:

one carp now knowing grass

And also thorn-shucks and seeds

Can outstay him:

* * * * * *

A hundred acres of canceled water come down

To death-mud shaking

Its one pool stomach-pool holding the dead one diving up

Busting his gut in weeds in scum-gruel glowing with belly-white

Unhooked around him all grass in a bristling sail taking off back-

blowing. Here in the dry hood I am watching

Alone, in my tribal sweat my people gone my fish rolling

Beneath me and I die

Waiting will wait out

The blank judgment given only

In ruination's suck-holing acre wait and make the sound surrounding NO

*493 Laugh primally: be

Like an open-gut flash an open under-

water eye with the thumb

pressure to brain the winter-wool head of me,

Spinning my guts with my fish in the old place,

Suffering its consequences, dying,

Living up to it.FN56

FN56. J. Dickey, “Remnant Water” in The Central Motion: Poems, 1968-1979 108-109 (1983).

Beulah Crevasse is but ninety-two acres of not yet cancelled water, and to those who war so over it Dickey seems to say that, if you like it when it is beautiful and serene and full of life, you must accept it-love it-equally when it has been taken away by nature and become but a mudhole with a dead carp in it, or when it has been taken by man, by the social invention he calls law. Dickey had these in mind when he said of such waters

[Y]ou have to accept the “gone depths” as well as the real depths that used to be there when the lake was whole, the dead fish as well as the live ones, the repulsive aspects of the scene as well as the beautiful ones that have disappeared: and if you are left with “ruination's suck-holing acre” it is your due: you know this and accept it, even with a kind of exultation, because the bond between you and the lake still exists no matter what, and you can therefore “laugh primally,” maybe no better than the dead belly-up fish but still, like he, in the old place, where you both belong, and know it.

We are informed by these thoughts, knowing that law is about life, that law is not an end but a means to the end of a society in which all should want to live, with its paradox and ambiguity, its irony and contrariety even that the law has wrought. We proceed to our institutional responsibility: the right interpretation and application of our law regarding rights to these waters.

Named Plaintiffs include the heirs of Walter Sillers, specifically his widow, Lena R. Sillers, who died in 1983 after suit was filed, Mary S. Skinner, Evelyn S. Pearson, Lilian S. Holleman, John L. Pearson, Evelyn P. Weems, Vernon W. Holleman, Sr., and Florence H. Schoenfeld. Alice K. Jones, the widow of Roy Jones, is a named Plaintiff, as is the Merigold Hunting Club, Inc., a Mississippi corporation. These are the parties who have brought this action, and in the main we call them “Landowners”.

Landowners' contestants-Defendants below and Appellants here-are fishermen. Walter Allen Ford grew up and lived but a few miles from Lake Beulah. He fishes commercially, the tools of his trade trot lines, nets and a small outboard motor boat. He fishes for “rough fish”-buffalo, catfish, gar. And so of the Dycuses and Charley Allen. They fish mainly at night.FN57

FN57. Compare E. Welty, supra, note 6 at 243; W.A. Percy, Lanterns on the Levee 17 (1941). Cf. Kelly v. Smith, 346 F.Supp. 20 (N.D.Miss.1972), aff'd Kelly v. Smith, 485 F.2d 520 (5th Cir.1973), (caretaker's rifle assault on trespassers on hunting club's preserve.)

At the center is the Merigold Blue Hole, formally though erroneously known as the Beulah Crevasse,FN58 and a remarkably good *494 fishing hole in western Bolivar County, about six miles below Rosedale, covering in the main some ninety-two acres, a map of which appears as Appendix A. To the north and west a chute 112 feet wide from treeline to treeline and 192 feet from top bank to top bank runs to the southern end of Lake Beulah, an oxbow lake some six toseven miles long. In the chute connecting crevasse and lake the water is ten feet deep six to eight months a year.

FN58. The linguist knows that a crevasse in life on the River refers to a breach in the top bank of the levee, not a lakelike body of water. When this happens “furious blue waters roar down the remains of the levee scouring deep holes in the earth.” Daniel, Deep'n As It Come: The 1927 Mississippi River Flood 22 (1977).

Nash Buckingham's short story, “The Sally Hole” tells of one such:
Between the levee and the house lay a twenty-acre lake, formed years ago when a lower barrier broke under the strain of an overwhelming freshet and dug out a deep, somnolent “Blue Hole.”

Buckingham, Tattered Coat 56 (1930). In his story of the Great Flood, Pete Daniel mocks a Corps of Engineers Colonel's dissertation on “ blew holes.”
Almost any inhabitant of the flooded area could have told the Colonel that it was a b-l-u-e hole because the water usually turned blue, and that it was the hole, some fifty to a hundred feet in depth, which was left when a crevasse gouged out the earth.

Daniel, Deep'n As It Come: The 1927 Mississippi River Flood, 148 (1977). For a broader perspective, see W.A. Percy, Lanterns on the Levee 244 (1941).

Our search of the judicial literature has yielded but a glancing reference to the formation of a blue hole. See Drainage District No. 48 of Dunklin County v. Small, 318 S.W.2d 497, 504 (Mo.1958).

In this opinion we consciously misuse the word “crevasse”, because the parties do, and by it refer to the body of water south of Lake Beulah left when the floodwaters receded in 1912. Indeed, the U.S. Army Corps. of Engineers labels it “Beulah Crevasse (1912)” in Flood Control and Navigation Maps of the Mississippi River, Map No. 24 (56th ed. 1988).
(Italics, indentation, etc. not preserved.)

That's eight pages in the Southern Reporter.

TBA agrees with the concurring opinion of Chief Justice Roy Noble Lee:
Finally, I have never attempted to edit the opinions of my colleagues on this Court. However, in my view, the first twelve pages of the majority opinion would best have been left unsaid, or relegated to a work of prose or fiction. The Bench and Bar have much law and many opinions to read and digest and should be permitted to choose when and where to read for pleasure.
The only thing I've seen like it is Rehnquist's dissent in the flag-burning case, Texas v. Johnson (which, among other things, quotes "Barbara Frietsche" in its entirety). That was bizarre and gratuitous as well, though also kinda funny.

Robertson is proud enough of Dycus to list it as a "notable case" or "professional accomplishment" on his web page. When the opinion does get around to mentioning the law, it seems correct; no one dissented.

... Mentioned to an older lawyer that I'd found maybe Robertson's silliest opinion. "The fishing one?" he asked.

Wednesday, October 26, 2011

Tuesday, October 25, 2011

At least he's candid

Kevin Drum:
From Rick Perry, after John Harwood of the New York Times notes that his tax plan will mean huge tax cuts for the rich in an era of already skyrocketing income inequality:

But I don’t care about that.

I suppose there's something oddly refreshing about that response.
Yes, it reminds me of this passage from Jack Vance's "Morreion":
"I am more inclined to punish Hurtiancz for his crassness," said Ildefonse. "But now he simulates a swinish stupidity to escape my anger."

"Absolute falsity!" roared Hurtiancz. "I simulate nothing!"

Ildefonse shrugged. "For all his deficiencies as polemicist and magician, Hurtiancz at least is candid."
... Following my free association, one of the quintessential Vance stories, "Green Magic," is online for some reason. It presents a very Vancian answer to the gripe Ilya Somin was posing the other day:
it strains credulity to believe that powerful sorcerers have been around for centuries, yet have never revealed themselves to normal humans, seized political power, or had any impact on history.
I'll let you read the story to see what I mean.

Come now, what else were you going to read about?

Brian Leiter plays the pick five books game on Nietzsche; his choices and discussion are worth a look. I haven't read Nietzsche's System, which sounds unpromising, but perhaps I will now do so.

Here's a good observation:
You mentioned that Nietzsche is fascinated by psychology. Do you think if he were around today he would be hanging around the psychology department, rather than the philosophy department?

Maybe not the psychology department in its current form! But he would be interested in psychological research. There are a number of themes in contemporary empirical psychology that are essentially Nietzschean themes. There is a large literature suggesting that our experience of free will is largely illusory, that we often think we’re doing things freely when in fact we’re not, that our actions have sources that lie in the pre-conscious and unconscious aspects of ourselves and then we wrongly think we’re acting freely. These are themes familiar to anyone who’s read Nietzsche and it’s striking that recent empirical work is largely coming down on Nietzsche’s side on these questions.
William James, I think, was having similar thoughts in the 1880s, but I'm not aware of any influence between him and Nietzsche.

Didion vs. Allen

NMC links to something I'd not seen -- Joan Didion's 1979 critique of Woody Allen. Great stuff, says I, as someone who likes Allen but loves Didion.
This notion of oneself as a kind of continuing career - something to work at, work on, “make an effort” for and subject to an hour a day of emotional Nautilus training, all in the interests not of attaining grace but of improving one’s “relationships” - is fairly recent in the world, at least in the world not inhabited entirely by adolescents. In fact the paradigm for the action in these recent Woody Allen movies is high school. The characters in Manhattan and Annie Hall and Interiors are, with one exception, presented as adults, as sentient men and women in the most productive years of their lives, but their concerns and conversations are those of clever children, “class brains,” acting out a yearbook fantasy of adult life.
The bitterness of a Californian come to NYC and finding everyone turning into goddamn Californians.

... Her response to a professor who writes to the NYRB defending Allen is another classic I hadn't seen, though I have wanted to file reply briefs with pretty much the same content.

... Google Books provides another example of Didion's aptitude for the terse rejoinder. Alfred Kazin did not like what Didion said about him in reviewing Cheever's Falconer:
Kazin protests remarks that Didion made about him . . . . More specifically, he fulminates at length about Didion's charge that he insufficiently appreciates Cheever and other Protestant writers. He even climaxes his five-paragraph tirade by proclaiming that one of Didion's statements about him "is worse than outrageous - it is stupid."
Didion's response, in full: "Oh, come off it, Alfred."

I wish she had reviewed Harry Frankfurt's little book On Bullshit, which could be the subtitle of much of her nonfiction.

Monday, October 24, 2011

Sometimes, you can get what you want

Be sure to emphasize to all the southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is.
-- Richard Nixon to John Mitchell, on the nomination of William Rehnquist to the Supreme Court.

Thursday, October 20, 2011

Have another hit ... and let me serve you with these papers

Is a spouse's marijuana use, in and of itself, sufficient grounds for divorce? 6-3 the MSSC says "yes.", though Justice Carlson in his dissent finds this dubious:
The “opium, morphine, or other like drug” ground for divorce entered the Mississippi Code in 1892. Deborah H. Bell, Mississippi Family Law § 4.02[7] (2005), Miss. Code Ann. § 1562 (1892). At that time, neither possession, distribution, nor use of opium and morphine was illegal in the State of Mississippi. Indeed, in perusing the 1892 code, only two crimes related to that drug can be found. It was a misdemeanor to sell morphine in a container without a scarlet label with white letters, and it was similarly a misdemeanor to sell morphine to any customer who did not have a physician’s certificate. Miss. Code Ann. §§ 1213, 1214 (1892).
Hence the mere illegality of marijuana should not suffice to liken it unto opium or morphine. Justice King's op for the majority holds that marijuana had sufficiently bad effects on the smoking spouse that it was "like" an opiate.

If Carlson's research is correct, this is the first U.S. reported decision granting a divorce for marijuana use.

Wednesday, October 19, 2011

Maybe he just didn't *feel* the gout as much

John Foster Dulles's antagonism towards Reds didn't spill over re: reds; he was quite the wine aficionado.
By the time he became Secretary of State, however, his doctors, concerned with his gout, had forbidden him both wine and cigars; for the former he seemed to find an acceptable substitute in Overholt rye ....
-- Townsend Hoopes, The Devil and John Foster Dulles, at 40.

Rye whiskey, more healthy than wine! (But come on, really - did that help?)

Does Exxon-Mobil believe that global warming is real?

Signs point to yes.

Also, Jesus was not Belgian

Someone asked me yesterday why I think Herman Cain is a clown. Here's his Christmas message posted at last year:
He led without a mandate. He taught without a script. His common sense parables filled people with promise and compassion, His words forever inspiring.

He never condemned what others believed – just sin, evil and corruption.

He helped the poor without one government program. He healed the sick without a government health care system. He feed the hungry without food stamps. And everywhere He went, it turned into a rally, attracting large crowds, and giving them hope, encouragement and inspiration.

For three years He was unemployed, and never collected an unemployment check. Nevertheless, he completed all the work He needed to get done. He didn’t travel by private jet. He walked and sailed, and sometimes traveled on a donkey.

But they made Him walk when He was arrested and taken to jail, and no, He was not read any Miranda Rights. He was arrested for just being who He was and doing nothing wrong. And when they tried Him in court, He never said a mumbling word.

He didn’t have a lawyer, nor did He care about who judged Him.
His judge was a higher power.

The liberal court found Him guilty of false offences and sentenced Him to death, all because He changed the hearts and minds of men with an army of 12.

His death reset the clock of time.

Never before and not since has there ever been such a perfect conservative.
You could really spend a good hour trying to point out everything wrong with this quotation, but I'll just leave it with the comment of my source, Doug Mataconis at OTB: "Yes, when I think of liberalism, the first thing that comes to mind is the 1st Century A.D. Roman Empire." Oh, and Herman, "A.D." means "Anno Domini" not "after death."

Tuesday, October 18, 2011

Then I gather he didn't watch cable

The subjects on which the Master did not talk, were - extraordinary things, feats of strength, disorders of nature, and spiritual beings.
-- Confucius, whom I sometimes read on my phone as an improving alternative to that brick-breaker game.

You've come a LONG way, baby!

Sexual discrimination in America is over and done with! Robert Bork says so!
How about the Equal Protection Clause of the 14th Amendment? Does he still think it shouldn’t apply to women?

“Yeah,” [Bork] answers. “I think I feel justified by the fact ever since then, the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now - a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”
What a shame that the Supreme Court was denied such a profound intellect.

A phrase whose powers of explication continue undiminished in our present day

A Ring Lardner fan site provides the context to his most famous line; this is from The Young Immigrants, about the Lardners' moving to a new town, from the p.o.v. of his young son:
The lease said about my and my fathers trip from the Bureau of Manhattan to our new home the soonest mended. In some way ether I or he got balled up on the grand concorpse and next thing you know we was thretning to swoop down on Pittsfield.

Are you lost daddy I arsked tenderly.

Shut up he explained.

Monday, October 17, 2011


Reading (sporadically) An Army at Dawn and found FDR at Casablanca mixing, not his godawful 2:1 Martinis, but Old-Fashioneds.

That inspired me to mix one tonight, and since I was watching the Dolphins go 0-5, I had a couple more after that, then a Manhattan or two (I am having some difficulty typing this, my friends). I cheated however, because my home drink manual suggested that simple syrup would do in place of the muddled sugar cube, and I fucking hate muddling sugar cubes -- they don't dissolve, dammit. (Ditto re: Sazeracs.) So I went first with 2 tsp per the recipe, which is too much, and decided one tsp is better. Quite easy to keep drinking those Old-Fashioneds, as you watch the Dolphins try yet again to run up the middle against the Jets defense (Sanchez is a squirrelly QB, but the Jets' defense is all too equal to the Fins' running game).

... Wondrich: "Originally -- in 1806, at least, which is good enough for us -- a 'cock tail' was a morning drink (ah, America!) made up of a little water, a little sugar, a lot of liquor, and a couple splashes of bitters. Freeze the water, make it with whiskey, and you have an Old-Fashioned."

UPDATE: Speaking of Manhattans, Sombra offers a "Manhattan Classico," using Añejo tequila instead of rye. Just don't order one from the friendly red-headed bartender who doesn't know to shake it up with ice, but rather just pours the ingredients together and gives it to you like that. Asked to recommend a drink, he said "Well, I'm a beer and wine kind of guy, not real into the mixed drinks." Which led us to wonder, then why are you standing on the other side of this bar?


That is all.


The acceptance of the fundamental truths of evolution are quite as necessary to sound scientific thought as the acceptance of the fundamental truths concerning the solar system.
-- Theodore Roosevelt, in a critical review of H.S. Chamberlain's racist tome The Foundations of the Nineteenth Century. Between that and his attitude towards corporations, he would poll somewhere between Michele Bachmann and Jon Huntsman in the current GOP race.

... TR drops an amusing footnote:
Some of his antipathies appeal to the present writer; I much enjoy his irrelevant and hearty denunciation of the folly of treating the comparatively trivial Latin literature as of such peculiar importance as to entitle it to be grouped in grotesque association with the magnificent Greek literature under the unmeaning title of "classic."


"Musicians Kim Gordon and Thurston Moore, married in 1984, are announcing they have separated."

... Via LGM, who do however cheer me up some by reminding me of Louis Menand's takedown of Steven Pinker.
The "intellectuals" in Pinker's book are social scientists, progressive educators, radical feminists, academic Marxists, liberal columnists, avant-garde arts types, government planners, and postmodernist relativists. The good guys are the cognitive scientists and ordinary folks, whose common sense, except when it has been damaged by listening to intellectuals, generally correlates with what cognitive science has discovered. I wish I could say that Pinker's view of the world of ideas is more nuanced than this. * * *

Many impulses are channelled or suppressed, and many talents and feelings are acquired, and have no specific genetic basis or evolutionary logic at all. Music appreciation, for instance, seems to be wired in at about the level of "Hot Cross Buns." But people learn to enjoy Wagner. They even learn to sing Wagner. One suspects that enjoying Wagner, singing Wagner, anything to do with Wagner, is in gross excess of the requirements of natural selection. * * *

In fact, the "universality of basic visual tastes" has been proved, Pinker points out, by the artists Vitaly Komar and Alexander Melamid, who, in 1993, surveyed people's artistic preferences for color, subject matter, style, and so on. They proceeded to make a painting that incorporated all of the top-rated elements: it was a nineteenth-century realist landscape featuring children, deer, and the figure of George Washington. Pinker notes that the painting exemplifies "the kind of landscape that had been characterized as optimal for our species by researchers in evolutionary aesthetics."

Jesus wept.
His tears being an effect of evolutionary selection, no doubt.

Contempt of (appellate) court

The Volokh blog points out the Supreme Court of the Virgin Islands' decision holding a (now retired) lower-court judge in criminal contempt for reacting badly to a writ of mandamus. Footnote 6 of the appellate opinion points out the portions of Judge Kendall's opinion that got him in trouble; the appellate court also found that Kendall recused himself to obstruct justice.

The offensive remarks are well worth reading, since anything that gets a judge cited for contempt is ipso facto not appropriate in a brief.

Friday, October 14, 2011

I had wondered when someone would notice us

USDA declares all Mississippi counties disasters.

... Not really true: 45 counties qualified for drought relief, and 24 others were contiguous to those and hence entitled to some sort of loan assistance. So by implication, 13 counties are doing all right. Mine is a bona fide disaster however.

(Barbour had *requested* that all Mississippi be declared a disaster area.)

Good appellate advice from Justice Scalia

Scalia gave some tips at a recent speech (via H/A). My fav:
"The worst mistake advocates make is not to welcome questions from the bench, to take them as interruptions," he said. Scalia, who is known to ask questions, said he can sometimes see lawyers arguing cases thinking, " 'This damn fool's wasting my time. If he didn't ask me these questions, I could be regurgitating my brief.' "

For your Netflix queue (if they're still doing that by then)

Jessa Crispin notes a documentary about W.G. Sebald by the guy whose most famous documentary was on Joy Division. Hm. Bookforum talks to the director. 'Twill be called Patience: After Sebald.

After my last post mentioning Sebald, I reread The Rings of Saturn and am now halfway through rereading Austerlitz. Reading Sebald is a bit like listening to Belle & Sebastian, in that once you're in that groove, everything else you could listen to or read seems trite. B & S however are not chronically depressed ... Sebald doesn't write much about depression per se, but he depicts a depressed world, a world that is either (1) as seen by a depressive or (2) so depressing in fact that depression is the only sane response to reality. Sure, just you go ahead and tell yourself that it's (1), if that helps you.

An amendment to the Declaration of Independence

Seen pasted onto a copy hanging hereabouts, in the midst of the recitation of grievances against George III:
For unrepentant faylure and Refusal to provide free Chiurgical care and Physick;
My libertarian friend denied having done that, but tanquam ex ungue leonem.

Tuesday, October 11, 2011

Too bad the Persians never thought of that

Mary Beard is surely right to argue that Alexander the Great has been heavily romanticized even (or especially) by professional classicists, but her debunking of him and of Philip II begins to seem a tad overboard when she writes this:
Like most historians, Worthington stands in awe of Philip’s invention of the sarissa, his devastating new piece of military hardware; but it was only an extra-long spear, so it is hard to see why Philip’s enemies didn’t just copy it.
Sure, just turn out a few hundred extra-long spears, and voila! military genius! This despite the well-known fact that phalanx tactics required quite a bit of drill and practice. Beard probably also thinks that the French were silly to lose the Hundred Years War, when all they needed was to make some longbows.

Sunday, October 09, 2011

Not all attention is good attention

St. Dominic and Jackson lawyer Whit Johnson appear on the front page of the weekend WSJ:
On April 7, a 48-year-old Baptist preacher named Gary Steve Moore had spinal-fusion surgery at St. Dominic Hospital here. Hours later, he was dead.

Mr. Moore had been suffering from a degenerating disk in his lower back. Two spine surgeons who later reviewed his medical records say his history of heart disease and bowel obstructions made him a poor candidate for a 360-degree spinal fusion, a complex operation that involved opening up both his abdomen and his back.

His neurosurgeon, Adam Lewis, felt that “surgery was indicated” given Mr. Moore’s worsening back pain and the fact that more conservative treatments he had tried, such as physical therapy, had provided no relief, says Dr. Lewis’s lawyer, Whit Johnson.

However, there was one element of the surgery that Dr. Lewis didn’t mention to the patient, according to his widow: The surgeon was part-owner of the company, Spinal USA, that makes the devices he implanted in Mr. Moore’s spine.

Dr. Lewis’s part-ownership of a medical-device company is far from unique in the world of back surgery. Rather than use spinal implants from third-party manufacturers, scores of surgeons have started their own device makers to churn out similar designs, putting themselves in a position to benefit financially from the hardware they insert into patients.
The article (subscriber-only) goes on to detail Spinal USA's effect on spinal implant surgery. Several quotes from Johnson, but nothing from the widow's lawyer, assuming she has one -- it makes me wonder whether he or she was an unnamed source for the article.

So many doctors cannot rest content making a good living from being doctors; they have to own their own MRI, or their own specialty clinic, or their own medical-device company.

... Kingfish has more quotes from the WSJ article.

Friday, October 07, 2011

Free Friday fonts

Bookslut steered us to Typography Daily, which provided its links to "20 great free fonts for designers."

Check 'em out -- the Serif Beta fonts and Bienetresocial are good for "designers" of legal pleadings.

Well, recuuuuuuuuuuuuuuse you!

Thus the MSSC to the Hon. Eddie Bowen, in its en banc order issued yesterday. (Thank you so much, Mississippi Supreme Court, for posting orders online now!)

This is the Judge Bowen who presided over an asbestos trial against Union Carbide and other defendants, and whose father turned out to've been not only tested for asbestosis, but to have settled an asbestos claim with Union Carbide. This after the court had "preemptively struck - for cause - all prospective jurors with family members [in the first degree] who had asbestos claims."

Given these facts, along with Judge Bowen's apparent reluctance to provide any information about his father, the MSSC held that the recusal standard had been met. We suspect it was the trial judge's evident reluctance to be forthcoming about his father that most impressed the Court; the order dwells on the fact that Judge Bowen (1) wouldn't even disclose his father's name, (2) wouldn't explain why, and (3) wouldn't allow sidebar conferences on the topic to be transcribed.

All this in a case where the jury has already awarded the plaintiffs $322 million. A new judge will have to handle the post-trial motions based only on the transcript and pleadings. Good luck with that, sir or madam, whosoever ye may be.

(The invaluable Philip Thomas had reported that Judge Bowen was appointed by Gov. Barbour after the passing of Judge Robert Evans. Apparently, Union Carbide didn't think that political fact was sufficient for it to wait on Judge Bowen's resolution of its post-trial motions.)

... Speaking of recusal, Justice Randolph self-recused from this matter last month:
The undersigned Justice has participated as defense counsel for numerous defendants in a multitude of asbestos cases both in-state and nationally, and in exercising his judicial discretion, has elected to recuse himself from any involvement in this matter.
We don't think that was by any means required, but any given judge or justice is the first, best authority on his or her own recusal. Justices Pierce and King also did not participate; the order was otherwise unanimous.

Thursday, October 06, 2011


CUPERTINO, CA—Steve Jobs, the visionary co-founder of Apple Computers and the only American in the country who had any clue what the fuck he was doing, died Wednesday at the age of 56. "We haven't just lost a great innovator, leader, and businessman, we've literally lost the only person in this country who actually had his shit together and knew what the hell was going on," a statement from President Barack Obama read in part, adding that Jobs will be remembered both for the life-changing products he created and for the fact that he was able to sit down, think clearly, and execute his ideas--attributes he shared with no other U.S. citizen. "This is a dark time for our country, because the reality is none of the 300 million or so Americans who remain can actually get anything done or make things happen. Those days are over." Obama added that if anyone could fill the void left by Jobs it would probably be himself, but said that at this point he honestly doesn’t have the slightest notion what he’s doing anymore.
Well, there *is* Bill Belichick.

NOLA notes

Went down for the 5th Circuit Bar Association's appellate-advocacy CLE, my first visit thereto. Impressions of the program:

● If you’re doing a handout on good legal writing, try to avoid making it replete with errors, unless there’s some sort of prize for whoever catches them all.

● Your oral argument is not going well when Judge Haynes (my new favorite CA5 judge) leans forward and says, “You’re not in Texas any more, my friend.”

● Always ask for oral argument if you’re the appellant. Judge Dennis told the audience that nothing gets reversed without oral argument, and that the brief’s statement regarding oral argument is rarely put to good use by counsel. If you can’t point to some major issue or precedent, just explain why it’s important to reverse the district court.

● Judge Elrod and unnamed other judges begin reading with the reply brief. Yikes. My future reply briefs will all begin with a short introduction to the case.

Happily, Mrs. TBA was able to join me, and we had a good time on non-legal matters:

● We went to Chickie Wah Wah on Canal where Scott H. Biram was attempting to persuade us of the existence of “Texas blues.” We remain skeptical.

● The Delachaise on St. Charles has a grand selection of beers and liquors, including the previously-unsuspected Michel Couvreur Scotch whisky, “crafted and bottled unfiltered in our Burgundian caves.” Yes: French Scotch. The mrs. enjoyed the shrimp Clemenceau, but I would regard it more as a place to imbibe.

● Mrs. TBA’s longtime desire to visit Stella! was finally gratified. I was sorry not to order the $20,000 bottle of Burgundy, but perhaps next time (I will have to make do with Burgundian Scotch). The kind of place that convinces me the top tax bracket is too low, but well carried-off, and Dallas, Ed, and Carlos were good sports. Do stop by for a drink at their small bar to chat with Katie if she is working – that young lady is going places. Don’t miss Daiquiri Days Oct. 14-15!

● Our best find was Mimi’s in the Marigny and its regular Monday-night act, Meschiya Lake. The amiable proprietor at Crescent City Books was playing a jazz CD, and when we asked who was singing (sounded like some 1940s character to me), he told us it was she and encouraged us to see her show that night. Miss Lake is a poised young chanteuse whom one could indeed transpose with hardly any changes (fewer tattoos?) into a club of 60 years ago. Apparently we were some of the last to find out about her, as she’s been on the ascendant for some time. Her Lucky Devil album was not so good as her performance, having been poorly produced to our ears (the horns drowning out her voice), but don’t miss a chance to go see her when you’re next in town.

● Another restaurant on our list was Mondo in Lakeview, which was enjoyable; the interior made me feel I was in Florida. Pizza too greasy for my taste, but the bar made a fine Manhattan and it was a pleasant meal.

Legal writing tip of the day

No one can write decently who is distrustful of the reader's intelligence, or whose attitude is patronizing.
-- E.B. White, The Elements of Style


... Or one might say: concealing one's distrust of the reader's intelligence is one of the greatest challenges in legal writing?

(Hint: boldfacing textual sentences throughout the brief? That doesn't conceal the distrust. On the contrary.)

Wednesday, October 05, 2011


Why can I never remember this?
It is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical. Because a trial transcript is rarely available within the time frame for filing post-trial motions, the most prudent attorney cannot be expected to pinpoint every objection raised and ruling made during the course of the trial. Thus, when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter's transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial.
I.e., no, a Rule 59 motion is *not* a prerequisite to filing an appeal. Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).