If not excessive.

We feel impatient with Royal Academy stuff of that sort because really the makers of it ought to have learned by this time that a copy of the universe is not what is required of art; one of the damned thing is ample.

—Rebecca West, "The Strange Necessity" (1928?)

Just a quiet place to get a little work done

Is that, as the Mirror claims, Hitler's study in his private apartment? Or is it his study in the Reich Chancellery?

Trick question: he lived in the Chancellery.

But I'm not buying that this was in his "private apartment." IIRC, Hitler liked to receive visitors in this huge space, which suggests it was quasi-official. (400 square meters, says Wikipedia.)

Anyway, cool to have a color photograph; click through for a couple of color shots of the old bastard himself.

Disclaimer: This disclaimer copied from McSweeney's

If you've been wanting to spruce up your e-mail disclaimer message, McSweeney's has one you can probably adapt to your purposes:

IMPORTANT DISCLAIMER: This email does not create an attorney-client relationship. Probably. If it does, it will have said it does. Although it could have created an attorney-client relationship without explicitly saying so, because the law is tricky like that, and the authoritative statements in this disclaimer are not as authoritative as they look. Suffice it to say, if you aren’t absolutely certain about whether or not an attorney-client relationship exists between yourself and the sender of this email, you should probably hit “reply” and ask for some clarity.

This email may contain confidential and/or legally privileged information. If it does, and you are not the intended recipient, then the sender hereby requests that you notify him of his mistake and destroy all copies in your possession. The sender also concedes that he is very, very stupid, and obviously should not be operating an electronic-mail machine without supervision.

The purpose of this disclaimer, in theory, is to protect the sender from whatever liability may result from the sender’s own failure to communicate clearly or properly send an email, even though the sender, having obtained a formal legal education, is well aware that a generic email disclaimer, even one written with that ominous language of which lawyers are so fond, is unlikely to be enforced against a party lacking a sophisticated understanding of the legal principles surrounding said disclaimer, and that in the case of a party who does understand the legal principles surrounding said disclaimer, the disclaimer merely restates what said party already knows. This disclaimer is a catch-22.

This disclaimer is not unlike the ceaseless blaring of a distant car alarm—a once-sincere warning that has evolved into an unpleasant nuisance, rendered meaningless by its own ubiquity. This disclaimer exists in a country where the demand for legal services is substantial enough to provide gainful employment for more than one million lawyers, virtually all of whom make liberal use of disclaimers purporting to protect themselves from the very litigiousness that pays their bills. You do the math.

This disclaimer is not especially concerned with intelligibility. Unlike the sender of this email, this disclaimer has no qualms about indulging in the more obnoxious trademarks of legalese, including but not limited to (i) the phrase “including but not limited to”, (ii) the use of “said” as an adjective, (iii) re-naming conventions that have little to no basis in vernacular English and, regardless, never actually recur (hereinafter referred to as “the 1980 Atlanta Falcons”), (iv) redundant, tedious, and superfluous repetition of synonymous terms, (v) ENTIRE SECTIONS OF FULLY-CAPITALIZED TEXT, PRESUMABLY INTENDED TO SAY TO THE READER, “HEY! THIS IS IMPORTANT! YOU SHOULD READ THIS PART! AND REMEMBER IT!”, AS IF NO ONE HAS EVER NOTICED THAT PHYSICALLY ENLARGING TEXT WITHOUT INCREASING THE AMOUNT OF SPACE AVAILABLE FOR SAID TEXT TO OCCUPY CREATES THE VISUAL EFFECT OF A SOLID RECTANGULAR BLOCK OF LETTERS, ROUGHLY AS CAPABLE OF IMPARTING A COHERENT THOUGHT AS A TIGHTLY-PACKED SCRABBLE® BOARD, and (vi) lowercase Roman numerals.

This disclaimer exists for precisely one reason—to make this email appear more professional. This disclaimer shall not be construed as a guarantee of actual professionalism on the part of the sender. Any actual professionalism contained herein is purely coincidental and is in no way attributable to the presence of this disclaimer. While the sender of this email likes to think the professionalism with which he approaches his work speaks for itself, this disclaimer constitutes (i) begrudging acquiescence to the industry standard, or at least a superficial imitation thereof, and (ii) begrudging acceptance of the paradoxical reality that people who exchange emails with lawyers both expect to see, and pay no attention to, legal disclaimers. If you aren’t reading this, then this disclaimer has done its job. Its sad, pointless job. THIS DISCLAIMER IS NOT INTENDED TO BE IRONIC.

Via How Appealing, which also links us to a (more) serious article on e-mail disclaimers. If you thought the McSweeney's disclaimer was bad, try this:

A series of disclaimers, disclosures and certifications the research firm of investment bank Nomura Group attached to a Jan. 20 Federal Reserve report emailed to clients ran 2,578 words, including noting that opinions expressed in the email "are subject to change without notice."

I thought only my wife's directions and opinions had that "subject to change without notice" quality. The disclaimer printed above is only 636 words.

Dickinson v. Dickinson

Hon. Jess Dickinson, today, dissenting in MWUA v. Union National Fire Insurance Co.:

While I do think it is appropriate – indeed, prudent – for this Court to carefully consider a governmental agency’s application and understanding of an ambiguous statute, that is as far as it goes. Taking an agency’s interpretation into account – even giving it great weight – is one thing; but deferring to the agency’s interpretation is quite another.

....

And as for this Court deferring to the Commissioner’s interpretation of the statute, I can think of no more dangerous perversion of our system of government than to say that the executive branch of government should interpret its own powers. Next thing you know, we’ll be deferring to our law enforcement agencies’ interpretation of the Fourth Amendment.

Hon. Jess Dickinson, 2008, in Hill Brothers Construction Co. v. Miss. Dep't of Transportation, 42 So. 3d 497:

This Court has held that the "interpretation given [a] statute by the agency chosen to administer it should be accorded deference." Williams v. Puckett, 624 So. 2d 496, 499 (Miss. 1993) (citing Gill v. Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 593 (Miss. 1990)).

... This is not the first time we have found Presiding Justice Dickinson to be of interest on standards of review.

Frankly, I'm surprised she even appears on film

Having secured yet another term in office as Hinds County Circuit Clerk, Barbara Dunn gets yet another spanking from the MSSC. Here is the opinion; or you can just read the handdown list:

EN BANC
2011-CA-00167-SCT

T. Jackson Lyons & Associates, P. A. v. Precious T. Martin, Sr. & Associates, PLLC; Hinds Circuit Court 1st District; LC Case #: 251-10-140; Ruling Date: 12/09/2010; Ruling Judge: S. Harrison; Disposition: The "Motion to Compel Circuit Clerk to Transmit Complete Record and to Stay Briefing Schedule" and the "Appellant's Response to Circuit Court's Findings on Remand and Motion for Further Remedial Relief" filed by T. Jackson Lyons & Associates, P.A., are granted in part and dismissed as moot in part as discussed herein.

On or before March 20, 2012, Honorable Tomie T. Green, Circuit Judge for the First Judicial District of Hinds County, Mississippi, shall calculate and impose the sanctions against the circuit clerk for her failure to comply with Rules 10 and 11 of the Mississippi Rules of Appellate Procedure. This amount shall be paid by Dunn personally and shall not be paid from an account containing public funds.

Barbara Dunn immediately shall provide adequate training and education for all of the employees in the office of the Circuit Clerk of Hinds County, Mississippi, as provided herein. The circuit court shall conduct an additional hearing to determine whether Wells falsely testified and, if so, take appropriate action. The Clerk of this Court shall send copies of this order to Barbara Dunn, Circuit Clerk of Hinds County, as well as her employee, Loretta Wells.

The Clerk of this Court shall spread this order upon the minutes of the Court and shall forward a true certified copy hereof to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Third Series (Mississippi Edition). Waller, C.J., not participating. Order entered.

Having had my own appellate-record adventures with that office, I welcome this move, while anticipating that little or nothing will change as a result.

Possibly Dunn's best ploy is to sue for ADA relief, on the grounds that she suffers the disability of being one of the Un-Dead and is thus hampered in her ability to supervise the clerk's office during normal business hours.

And there was that near-fatal accident when some new employee forgot to draw all the shades:

That was a close one.

... Proof of Dunn's vampiric state! According to the Clarion-Ledger in 2004, Dunn had "413/4 years" of state service. That adds up to 110 years as of now, not even counting her lifespan before entering state service.

I mean, what's more likely: that she's a vampire, or that the Clarion-Ledger would print a typographical error?

... More photographic evidence:

Is she hypnotizing Judge Gowan with her mesmeric stare?

Professor Gingrich

Daniel Larison, who some mornings can't quite understand why he's a Republican until he's had his first cup of coffee, considers Newt Gingrich's grasp of American history:

[Quoting: Gingrich] vowed to keep Iranian bases out of the region [i.e., Venezuela], averting the potential “first overt violation of the Monroe Doctrine since the 1820s.”

The foreign policy ideas are bad enough, but Gingrich couldn’t resist making what sounded like a learned historical reference that was complete nonsense. There were already some perceived violations of the Monroe Doctrine in the 19th century, including the French invasion of Mexico, and the Venezuelan boundary dispute of 1895-96.

Yes, invading an American country and installing a puppet emperor might strike some dispassionate minds as an "overt violation of the Monroe Doctrine."

Theophrastus on brief-writing

He used to say that it was better to trust to a horse without a bridle than to a discourse without arrangement.

—Diogenes Laërtius, Lives and Opinions of Eminent Philosophers

Padilla appeal bounced - no remedy when the feds invoke spoooooky security issues

Steve Vladeck notes that Jose Padilla lost his Fourth Circuit case (I think he has one pending in the Ninth as well). No time to study the op now, but here's Vladeck:

The short of Judge Wilkinson’s analysis is encapsulated within the following two passages:

Special factors do counsel judicial hesitation in implying causes of action for enemy combatants held in military detention. First, the Constitution delegates authority over military affairs to Congress and to the President as Commander in Chief. It contemplates no comparable role for the judiciary. Second, judicial review of military decisions would stray from the traditional subjects of judicial competence. Litigation of the sort proposed thus risks impingement on explicit constitutional assignments of responsibility to the coordinate branches of our government. Together, the grant of affirmative powers to Congress and the Executive in the first two Articles of our founding document suggest some measure of caution on the part of the Third Branch. . . . When, as here, these two branches exercise their military responsibilities in concert –- Congress by enacting the AUMF and the President by detaining Padilla pursuant thereto—the need to hesitate before using Bivens actions to stake out a role for the judicial branch seems clear.

In other words, once Congress triggers the use of military force, Bivens should not generally be available if government officers violate the rights of U.S. citizens while ostensibly acting under such authorization. And if that logic wasn’t clear enough, Judge Wilkinson concludes:

Padilla’s complaint seeks quite candidly to have the judiciary review and disapprove sensitive military decisions made after extensive deliberations within the executive branch as to what the law permitted, what national security required, and how best to reconcile competing values. It takes little enough imagination to understand that a judicially devised damages action would expose past executive deliberations affecting sensitive matters of national security to the prospect of searching judicial scrutiny. It would affect future discussions as well, shadowed as they might be by the though that those involved would face prolonged civil litigation and potential personal liability.

I’ve written before about why this line of reasoning is utterly incoherent in the context of whether to infer a Bivens remedy, since these are the very issues that are usually resolved through application of either the state secrets privilege or the qualified immunity defense. Indeed, this was the logic behind the dissents by Judges Sack and Calabresi in the en banc Second Circuit’s decision in Arar, only here, we have alleged mistreatment of U.S. citizens within the territorial United States…

Thus, to hold, as the Fourth Circuit does, that these factors categorically cut against the availability of a Bivens remedy is to forswear any Bivens claim challenging any governmental abuses committed in the name of protecting national security, even those in cases in which state secrets or qualified immunity would not bar relief – that is, cases in which there is no realistic potential for the disclosure of classified national security information and it is clear that what the government officers did was unlawful at the time of their conduct. Whether or not that was true in Padilla’s case, this is a disturbing result going forward. In my view, at least, we should want government officials to worry that their mistreatment of detainees while in custody (especially U.S. citizens held without charges) might subject them to legal liability.

So one might've thought.

... Also via Lawfare: CIA officer John Kiriakou is indicted for "leaking classified to a journalist concerning interrogation at GTMO, including the identity of persons involved in interrogation sessions." Yes, this is the same Kiriakou who talked to ABC about waterboarding.

Another illustration that Obama cares nothing about prosecuting torture and war crimes, but oodles about prosecuting leakers.

... Kiriakou allegedly was a source for this NYT article that exposed the name of a CIA interrogator, Deuce Martinez (no, not an Elmore Leonard character). We noted Mr. Martinez, now employed with the pseudo-experts Mitchell & Jessen, a while back.

MS Republicans act out their own stereotype

So, liberals, you probably would like to caricature the Mississippi GOP capture of both houses of the Legislature. Now that the Republicans are in power, they will immediately move to implement their nefarious agenda, imposing deep cuts to essential agencies like the Department of Health!

And yes, as it turns out, that does seem to be the plan.

Legislative budget writers want to slash the state general fund appropriation for the state Department of Health to $20.7 million - the lowest level it has seen since 1990, when it received $20.3 million. * * *

In fiscal 2010, the Health Department received about $29 million in state funding - less than a tenth of the $325 million that Alabama has for its state public health budget.

TBA is not well informed as to the merits of this proposed cut, but we're amused that the Republicans' self-image matches up so precisely with their stereotype.

(Note that, because the story is by Pulitzer-Prise-winning super-journalist Jerry Mitchell, it's about as clear as mud. The above quote contrasts "$29 million in state funding" with "the $325 million that Alabama has for its state public health budget"; but Mitchell also writes that, due to federal matching funds and who knows what other sources, MSDH actually has a "$351 million budget." So is the Alabama number properly compared to the general-fund appropriation, or to the total MSDH budget?)

Thirteenth Amendment not "flexible" enough, says Apple

America just can't be competitive, it seems, so long as we rely on our outmoded free workforce:

Apple’s executives believe the vast scale of overseas factories as well as the flexibility, diligence and industrial skills of foreign workers have so outpaced their American counterparts that “Made in the U.S.A.” is no longer a viable option for most Apple products. * * *

Apple executives say that going overseas, at this point, is their only option. One former executive described how the company relied upon a Chinese factory to revamp iPhone manufacturing just weeks before the device was due on shelves. Apple had redesigned the iPhone’s screen at the last minute, forcing an assembly line overhaul. New screens began arriving at the plant near midnight.

A foreman immediately roused 8,000 workers inside the company’s dormitories, according to the executive. Each employee was given a biscuit and a cup of tea, guided to a workstation and within half an hour started a 12-hour shift fitting glass screens into beveled frames. Within 96 hours, the plant was producing over 10,000 iPhones a day.

“The speed and flexibility is breathtaking,” the executive said. “There’s no American plant that can match that.”

Not since some decades ago, anyway.

Some other points in the article bear thought: America needs more engineers, and the Chinese government subsidizes costs for many industries. But the bottom line seems to be that with armies of indentured laborers, China makes it possible for Apple to make last-minute decisions (having insufficiently thought out its product) and still get its product out on time.

Read the whole article; it's also discussed at TNR (which latched onto the same quote I found so remarkable).

Crank call?

Richard Feynman, in his Nobel lecture (1965):

I received a telephone call one day at the graduate college at Princeton from Professor Wheeler, in which he said, "Feynman, I know why all electrons have the same charge and the same mass." "Why?" "Because, they are all the same electron!"

From a discussion of this "one electron" theory.

Philbin to Phins

Green Bay's offensive coordinator Joe Philbin is the new head coach at Miami.

Hard to say the team could've done any better. The hope is that Matt Flynn will follow him, tho I'm sure the competition for Aaron Rodgers' understudy will be fierce.

Ta-Nahesi Coates misses the point

As I've said before, I think filming The Great Gatsby in 3-D is a pretty bad idea ....

Thus says TNC, whose post however goes on to reveal that the person whose bad idea that was is the film's director ... Baz Luhrman.

You want to hear a REALLY bad idea? Baz Luhrman filming The Great Gatsby.

Things I do not understand

Lots of things are legal. You can marry your first cousin in some states. You can drink a fifth of vodka every day, provided you don't drive drunk or frighten the horses. You can write a book saying what a wonderful guy Stalin was.

You can do all those things, but is it a good idea to run for president in that case?

Now, is this comparable?

Although it is not apparent on his financial disclosure form, Mitt Romney has millions of dollars of his personal wealth in investment funds set up in the Cayman Islands, a notorious Caribbean tax haven.

Sure, a tax shelter in another country is legal. But isn't it a trifle sleazy? Less than completely patriotic? Getting away with everything you can?

Or is that just me?

... In comments, veteran commenter Ugh is skeptical that there's any savings to the Cayman funds. Political Wire now links to a WSJ (!) story saying Romney is indeed deriving a tax advantage.

As with any such story, there are two unrelated questions: is it true, and who's pursuing their advantage by arranging to promulgate this story?

Scotland Yard: U.S. tortured British subject

Did they not get the "look forward, not backward" memo?

The British government admitted today that a terrorist suspect whose case has drawn international attention was interrogated by U.S. officials and tortured during the two years he was held in Morocco.

The findings, resulting from an investigation by England's highest criminal prosecution agency, contradict the obfuscation, stonewalling, and denials by American officials about the case of the suspect, Binyam Mohamed.

At one point, the Obama Administration threatened to cut off intelligence sharing with the UK if a British court ordered the release of classified documents in the case.

Mohamed was picked up in Pakistan in 2002, and U.S. officials alleged that he had undergone training at al-Qaeda camps in Afghanistan and was preparing to detonate a "dirty bomb" in the United States.

After 18 months of interrogation in Pakistan, the CIA secretly transported him to Morocco as part of the Bush Administration's "extraordinary rendition program," according to Mohamed's lawyers, a claim that appears to be corroborated by the flight records of the CIA-chartered planes. He was later taken to Guantanamo.

The CIA has never admitted that Mohamed, an Ethiopian-born British citizen, was ever held in Morocco, and has routinely denied all allegations of torture.

An American military lawyer who represented Mohamed has said that the torture he endured makes waterboarding "look like child's play."

While being interrogated, Mohamed was hanged from a wall with his feet unable to reach the floor, according to his lawyer, Clive Stafford Smith, director of Reprieve, a London-based human rights non-profit. Then, naked women were paraded before him.

On more than one occasion, Mohamed says, men in black masks and military trousers made cuts on his chest and genitals with a razor.

At one point, a woman in the group who spoke with an American accent arrived. She took pictures of his wounds, Mohamed told his lawyer.

More here. N.b. that the Brits participated by supplying the U.S. with "information about Mohamed" and suggested questions to ask, but the investigation found "insufficient evidence" to charge any British spooks with a crime. Funny how that happens.

This just in

... from PNN, the news network that's only viewable inside Rick Perry's head:

Rick Perry said in Monday’s South Carolina debate that Turkey may have been taken over by “Islamic terrorists” based on their ruling Islamic party. The answer came in response to a question over whether Turkey should remain a NATO ally, which Perry said was a conversation worth having.

“Obviously when you have a country that is being ruled by what many would perceive to be Islamic terrorists, when you start seeing that type of activity against their own citizens, then, yes,” he said.

“Not only is it time for us to have a conversation about whether or not they belong…but it’s time for the United states, we look at their foreign aid, to go to zero with it.”

You can read here about Turkey's "Islamic terrorist" ruling party, which has been working to bring Turkey into the European Union ... because that's their terrorist plot! And here about their prime minister and his achievements while in office ... which are suspicious for their utter concealment of his terrorist agenda!

... The Turks retort. Money shot: "Indeed, Turkey is a strong and growing trading partner with the U.S. in general, and with Texas in particular, creating thousands of jobs throughout that state." Why is Texas providing material support to terrorism?

Also, Larison looks briefly at how Turkey became safe for GOP candidates to demonize.

Dep't of Ewwwwwwww

Newsweek on Rick Santorum's wife, Karen:

Mrs. Santorum, 51, apparently wasn’t always committed to the cause. In fact, her live-in partner through most of her 20s was Tom Allen, a Pittsburgh obstetrician and abortion provider 40 years older than she, who remains an outspoken crusader for reproductive rights and liberal ideals. Dr. Allen has known Mrs. Santorum, born Karen Garver, her entire life: he delivered her in 1960.

TBA goes on record as favoring the outlawing of sexual relationships between doctors and the people they actually delivered. Because some things are just wrong.

... Bunny Garnett wasn't quite as bad, but close:

He was present at the birth of Grant's daughter, Angelica (by Vanessa Bell, and accepted by her husband Clive Bell), on 25 December 1918, and wrote to a friend shortly afterwards, "I think of marrying it. When she is 20, I shall be 46 – will it be scandalous?". When Angelica was in her early twenties, they did marry (on 8 May 1942), to the horror of her parents.

Then again, Garnett had also been Duncan Grant's lover.

Wow. Just wow.

37-20 Giants. Tell me who in the world predicted that.

(And both Packer TDs enabled by bogus calls. Scott Lemieux catches that Bill Levey Leavy, the head ref who blew the fumble call in the 1st quarter, is the guy who blew calling Super Bowl XL. Why is he allowed to call a playoff game?)

... I think the Giants can beat the Pats. I'm not sure they can beat the 49ers. And today's Ravens have as much chance against the Pats as Tebow and the Broncos did last night. But Flacco is kinda random: on a good day, with a good defensive effort, they could startle the Patriots.

Seventh Circuit takes judicial notice of Bob Marley's dreads

In the course of holding that a prison can't allow Rastafarians to have dreadlocks, but then cite safety grounds in denying a different religion's faithful the right to wear dreads. See page 3.

Via.

Judge Posner got all pictorial on us last year as well. This time, no one's feelings are likely to be hurt by the picture. Which, btw, is not an early hit on Google Images. Maybe it's from Posner's personal collection?

When is a publication a publication - and whom does one ask?

The trusties' pardons we noted the other day were followed by a slew of pardons and commutations just before Barbour left office. Many of these new mercies were issued to persons who had *not* killed their wives!

NMC has been all over this, and reports that Jim Hood has obtained a TRO on the basis that some of the pardons may not've complied with Section 124 of the state constitution, which requires 30 days' notice via newspaper publication prior to a pardon's issuing.

Not at all my area of the law, but Justice Ethridge's dissent in State ex rel. Boone v. Metts, 125 Miss. 819 (1921), bears quotation:

For instance, he is limited in granting a pardon to such cases as where publications have been made for thirty days in a newspaper of the county, but his decision as to whether the publication was made is not open to judicial review.

Ethridge - one of the more respected justices of his day - makes this statement without citation, as if it were too obvious to need support. I don't see where the majority disagrees.

What kind of limit Section 124 sets, if the governor is himself the judge of whether the limit doesn't apply, is a question I wish I could ask Justice Ethridge; but given the paucity of law on the subject, it seems worth mentioning.

Just holy enough to fire.

So the Supreme Court has upheld the right of Hosanna-Tabor Evangelical Lutheran School to fire a school teacher as retaliation for threatening to file a disability-discrimination suit, on the theory that she was a "called" teacher and not a "lay" one, and thus a "minister" for purposes of resolving the conflict between the Free Exercise Clause and the ADA:

The Synod classifies teachers into two categories:“called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God through a congregation. To be eligible to receive a call from a congregation, a teacher must satisfy certain academic requirements. One way of doing so is by completing a “colloquy” program at a Lutheran college or university. The program requires candidates to take eight courses of theological study, obtain the endorsement of their local Synod district, and pass an oral examination by a faculty committee. A teacher who meets these requirements maybe called by a congregation. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.”

Unmentioned in the opinion is that the Missouri Synod, which operates Hosanna-Tabor, does not believe women can be ordained as pastors.

But, hey! if labeling female teachers as "called" helps the church evade federal antidiscrimination law, then surely Jesus approves!

Great moments in oral argument

In the oral argument regarding FCC penalties for indecent TV broadcasts, Chief Justice Roberts slipped up by saying what he was thinking:

Roberts jumps in to add, “People who want to expose their children to broadcasts where these words are used, there are 800 channels where they can go for that. All we are asking for ...” he stops himself. ”What the government is asking for, is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity.”

Dahlia Lithwick.

Best review ever?

The Browser says that this review is "arguably the best review ever. Certainly of 'War Horse', as filmed by Steven Spielberg. Possibly of any film. Or indeed anything else." (Via.)

You may decide for yourself; if you are lucky, I think, you will be able to decide without seeing the movie.

Personally, the best movie review I've ever read is this one. But then, I actually had to take my kid to see Transformers 2, so I had a lot of mental trauma to heal.

Annals of faint appellate praise

The conflict of punitive damages law perceived by the chancellor was a false one. However, he cured his mistake by torturing the choice of law rules to yield the same result.

Valley Forge Ins. Co. v. Strickland, 620 So. 2d 535, 539 (Miss. 1993).

QOTD

One must live and write restlessly, with the help of the new reserves that life offers. I am weary of this notion of faithfulness to a point of view at all cost. Life around us is ever changing, and I believe that one should try to change one’s slant accordingly - at least once every ten years. The great heroic devotion to one point of view is very alien to me - it’s a lack of humility.

-- Boris Pasternak, interviewed by the Paris Review

The appellate equivalent of three and out

Two months after the Bad Argument Day we noted, the SCOTUS reverses a murder conviction based on a Brady violation by the Orleans Parish D.A.'s office.

The only slightly remarkable thing is that it was 8-1 not 9-0, but Justice Thomas could not bring himself to vote to reverse. The op by Roberts makes short work (barely 4 pages) of that:

The State and the dissent advance various reasons why the jury might have discounted Boatner’s undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner’s contradictory declarations the jury would have believed. The State also contends that Boatner’s statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State’s argument offers a reason that the jury could have disbelieved Boatner’s undisclosed statements, but gives us no confidence that it would have done so.

Scene from the Superdome

Takin' it home to Tuscaloosa.

... First ever shutout in a BCS bowl, let alone championship. Okla. State # 2?

I didn't think it could get less exciting than their last game. I was wrong.

Big fuckin' deals!

From "Osaka's Shinsaibashi Shopping Street." Language Log, via Volokhia.

Déjà vu all over again

Barbour pardons a wife-killer ... didn't that already happen? Several times?

(H/t J.L.)

What is this Lion doing?

Missing a tackle, apparently.

Poppies and cornflowers

Here is a poem from 1913 by Gottfried Benn, a physician whose poetry drew heavily on his work:

Before a cornfield he said:
The fabled fidelity of cornflowers
is a fine motif for women painters,
but I prefer the profound opera of the poppy.
It makes you think of blood clots and menstruation.
Of suffering, spitting up, going hungry, kicking the bucket—
in short: of the murky path of man.

And here is "Poppies in October" from Plath's Ariel, a poem she wrote the same day as "Ariel" itself:

Even the sun-clouds this morning cannot manage such skirts.
Nor the woman in the ambulance
Whose red heart blooms through her coat so astoundingly —

A gift, a love gift
Utterly unasked for
By a sky

Palely and flamily
Igniting its carbon monoxides, by eyes
Dulled to a halt under bowlers.

O my God, what am I
That these late mouths should cry open
In a forest of frost, in a dawn of cornflowers?

Leaving aside the evident appeal that Benn ("brutal honesty of an unprecedented perception," said Walter Kaufmann of his work) would have for Plath, I am not buying an accidental juxtaposition of poppies and cornflowers in her poem. I'm pretty sure she had at least a reading knowledge of German. And that stunning image of the woman in the ambulance is comparable to some of Benn's early poems about his morgue work.

The preference for poppies over cornflowers is evident in both poems; Benn spells out what they represent, which is less explicit in Plath's poem, where the hue and emotion of the poppies is contrasted with a dullness of both color and soul. To the extent that Benn's poem echoes in Plath's, there's her rejection of being a "mere" woman artist in favor of the male "path" (tho how Benn appropriates menstruation for men is a great mystery indeed).

The temporal juxtaposition to "Ariel" fits into that male/female tension:

And I
Am the arrow,

The dew that flies
Suicidal, at one with the drive
Into the red

Eye, the cauldron of morning.

As often noted, this passage "rhymes" with the part of The Bell Jar where Buddy's mother says "What a man is is an arrow into the future and what a woman is is the place the arrow shoots off from," and Esther thinks to herself that she wants to be the arrow instead.

(Wikiquote reminds me of another poppy passage, also in The Bell Jar:

When they asked some old Roman philosopher or other how he wanted to die, he said he would open his veins in a warm bath. I thought it would be easy, lying in the tub and seeing the redness flower from my wrists, flush after flush through the clear water, till I sank to sleep under a surface gaudy as poppies.

Plath finished The Bell Jar in August 1961 and wrote "Ariel" and "Poppies in October" in 1962; she reuses lots of images in her poetry and prose in this time, a reminder of how short her active career was.)

Corporations are people too, if you don't know how to read

Brad DeLong convenes a symposium of Edward Coke, John of Salisbury, Thrasymachus, and Justinian to discuss how "person" in the 14th Amendment came to be construed as including corporations.

Justinian: So if you have more corporations in your state, you get more representatives in the legislature?

John of Salisbury: No, no, no! "Persons" in Section 2 refers only to human beings...

Edward Coke: And "persons" at the start of Section 1 refers only to human beings...

John of Salisbury: Only "persons" at the end of Section 1 refers to legal persons, i.e. corporations, as well as human beings...

More at the link, including the "invisible ink" theory of legislative intent.

The GOP: Looking out for the 1%

Kevin Drum presents charts from the Tax Policy Center, assessing the tax relief proposed by Romney, Gingrich, Cain (remember him?), and Perry. You will be surprised to see who gets the lion's share of the relief.

Okay, I lied. You weren't surprised at all, were you? But really, I *was* surprised: tax rates *decline* for millionaires as compared to those eking it out on $200K or $500K a year? Pretty egregious.

As Drum notes, Romney's plan lamentably fails: it's not generous towards the lower/middle classes, while coming nowhere near the giveaways to Mr. Moneybags offered by his rivals. But since he's Romney, I'm sure he will have another position to offer.

Talk to the sock puppet

The unclever and unethical Lee Siegel, whose sock-puppetry on his own comment threads got him suspended from The New Republic, has acquired a gig at the NYRB, attesting to its declining standards.

In the linked post, his thesis is that Marilyn Monroe's sexuality is some sort of secret that's been covered up. No, not like "she's a lesbian" sexuality; I mean as in being sexy, liking sex, etc. No really, that's his point. Yes, that Marilyn Monroe.

For fun, you can look at the comments and try to guess which Siegel posted himself. "A truly fascinating piece. Thought provoking and unexpected in many ways"? But probably not this one: "Wow. Lee Siegel, the first writer to notice that Marilyn Monroe was sexy."

(My comment drawing readers' attention to the Reason story linked above did not meet the high standards set by the NYRB's moderator.)

... I'd forgotten this great ObWi post by Hilzoy, which casts some light on Siegel's erotic daydreaming about Monroe: a relatively healthy obsession, by comparison.

Train wreck in the Orange Bowl

West Virginia's 70-33* massacre of Clemson last night was like a train wreck: I couldn't look away from the horrible sight.

Between 13:25 and 0:04 in the 2d quarter, WV scored five touchdowns. I wonder whether any other team, college or pro, has scored five TDs (or more!) in fewer than 13:21.

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*Note: it wasn't that close.

... NFL record in one quarter is four TDs, but that's one player (WR Don Hutson in 1945).

The 1987 Redskins scored 5 TDs in the 2d quarter of Super Bowl XXII against the hapless Broncos; that's a Super Bowl record, but I can't find a TDs/quarter record for the NFL generally, or for the NCAA.

The myth of Apple's design brilliance

Item: any cell phone that realistically *requires* one to buy a $15 plastic film to cover its glass face - a film that is devilishly difficult to apply correctly - is not, in fact, a well-designed cell phone.

Lilla on conservativism

Mark Lilla objects to Corey Robin's The Conservative Mind as conflating distinct categories or axes of thought, most conspicuously "conservative" and "reactionary." Good stuff.

What we have not seen much of, except on the fringes of American politics, are redemptive reactionaries who think the only way forward is to destroy what history has given us and wait for a new order to emerge out of the chaos. At least until now.

The real news on the American right is the mainstreaming of political apocalypticism. This has been brewing among intellectuals since the Nineties, but in the past four years, thanks to the right-wing media establishment and economic collapse, it has reached a wider public and transformed the Republican Party. How that happened would be a long story to tell, and central to it would be the remarkable transmutation of neoconservatism from intellectual movement to rabble-rousing Republican court ideology.

... Yglesias links to a critique* of Lilla's review, and himself poses a test question: if Lilla is right and Robin wrong, then why is low taxes for the super-rich the cornerstone of the GOP platform? (My metaphor, not Y's: do platforms *have* cornerstones?)

And the story here seems to be very much in line with Robin's framework. High income individuals have never been excited about progressive income taxation, and over the past few decades they've mobilized politically against it. At the same time, income inequality has grown and over the past 10-15 years it's grown very specifically with a concentration in the hands of a very small number of people. Naturally, in a political democracy if "the one percent" end up with a larger and larger share of national resources you're going to see a coalition mobilize to try to take those resources for various purposes. The richer the one percent get, the more attractive they become as a target and the more they counter-mobilize on behalf of their own interests. And conservatives in American politics today are largely united by a decision to embrace the one percent's side of the argument.

A blog debate between Lilla and Robin would be useful.

(Also, if I'm not mistaken, Slate pays someone to proofread Yglesias's blog posts. Good idea.)

... Sheri Berman also regrets Robin's book, and points out something so obvious that we forget to notice it:

The questions Robin and his ideological confreres should really be asking themselves is why the contemporary left has been so bad at this, particularly in contrast to the contemporary right. Why, in an era of extreme unemployment, rising inequality and social dislocation, is it the right rather than the left that generated a movement like the Tea Party? Why are mass protests railing against tax increases rather than demanding more progressive and activist government?

Indeed. The ability of the GOP to mobilize voters *against* their economic interests is masterful.

(I don't think Occupy Wall Street etc. are really counterexamples; how many OWS candidates are there for public office? Sixties-style "protests" play into the opposition's hands, is my fear.)

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* Call me a sissy, but I would refuse to subscribe to a magazine that uses a guillotine victim as its promo art, even if it is called Jacobin. That's just despicable.