Thus Blogged Anderson

If not excessive.

2012-01-29T12:24:00.000-08:00

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

2012-01-27T14:41:00.000-08:00

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

2012-01-27T09:28:00.000-08:00

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

2012-01-26T12:23:00.000-08:00

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

2012-01-26T11:33:00.000-08:00

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

2012-01-26T11:27:00.000-08:00

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

2012-01-24T12:27:00.000-08:00

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

2012-01-23T13:04:00.000-08:00

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

2012-01-23T12:11:00.000-08:00

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

2012-01-23T09:39:00.000-08:00

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?

2012-01-23T08:08:00.000-08:00

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

2012-01-21T08:11:00.000-08:00

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

2012-01-18T15:07:00.000-08:00

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

2012-01-18T14:34:00.001-08:00

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

2012-01-17T06:12:00.000-08:00

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

2012-01-17T06:03:00.001-08:00

... 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

2012-01-16T15:29:00.000-08:00

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.

2012-01-15T17:35:00.000-08:00

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

2012-01-13T09:53:00.000-08:00

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?

2012-01-12T11:24:00.000-08:00

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.

2012-01-12T05:50:00.000-08:00

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

2012-01-11T13:38:00.000-08:00

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?

2012-01-11T11:47:00.000-08:00

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

2012-01-11T09:07:00.000-08:00

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

2012-01-11T05:55:00.000-08:00

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

2012-01-10T07:47:00.000-08:00

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

2012-01-09T20:22:00.000-08:00

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!

2012-01-09T15:53:00.000-08:00

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

Déjà vu all over again

2012-01-09T09:24:00.001-08:00

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

(H/t J.L.)

What is this Lion doing?

2012-01-07T19:34:00.000-08:00

Missing a tackle, apparently.

Poppies and cornflowers

2012-01-07T08:46:00.000-08:00

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

2012-01-07T07:26:00.000-08:00

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%

2012-01-06T13:04:00.000-08:00

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

2012-01-06T11:54:00.000-08:00

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.

"BLANK PAPER IS GOD'S WAY OF TELLING US THAT IT'S NOT SO EASY TO BE GOD"

2012-01-06T10:13:00.001-08:00

I'm sure I linked it in some prior incarnation of this blog, but here is Craig Vetter's delightfully mean-spirited essay on teaching freshman comp, "Bonehead Writing."

There's a sort of low moan that goes up periodically from the English departments at colleges and universities across the country over the fact that most students, even the good ones, can't write a lick - not a love letter or a suicide note, much less an essay or a term paper. It's nothing new, but according to the teachers who have to read this crap for a living, the further we get into the computer era the worse it's becoming. So at places like Harvard and Yale and Brown, they're holding faculty conferences to hash the problem through; they're designing bonehead writing courses and setting up special peer-group tutoring problems in an all-out, last-ditch effort to ensure that their graduates will at least be able to fill out applications for day labor without embarrassing themselves.

They haven't gone so far as to suggest that a student be required to write, say, one short coherent paragraph in order to graduate, but there are signs that they're getting a little desperate. For one thing, they're hiring more and more writers, and I don't mean just the cocktail-party lions of big fiction, either. They're actually cleaning out the mop closets to make office space for journalists and other freelance grubs who have spent most of their careers below decks, sweating and wiping the greasy pipes in the engine room of the profession.

Somehow, I haven't been asked. I am qualified, though; at it almost 20 years with nothing to show except a world-class alcohol/tobacco habit, debt that follows me like a huge pet rat and a small, used Olivetti with a leatherette case. Credentials, in other words. And I know some things about writing that others are not likely to tell you; ugly things. I think I could cram most of them into the first lecture, which, given the size of the problem, would probably have to be held in a fairly large room. If I did it right, though - if I were honest with my students - I think we could most likely hold the second class in a Datsun and get everybody in comfortably.

As the Datsun reference indicates, this first appeared in the 1980s, in Playboy as I recall.

Train wreck in the Orange Bowl

2012-01-05T08:46:00.000-08:00

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.

____________________________________
*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

2012-01-04T11:07:00.000-08:00

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

2012-01-02T12:15:00.000-08:00

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.)

_________________
* 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.

Poor judgment?

2011-12-30T19:26:00.000-08:00

Mississippi State squeaked it this time with a 23-17 win over Wake Forest, but the last few drives of the game shouldn't have been that close: in an astounding lapse of judgment, Dan Mullen had Relf throw a pass with 6 seconds left in the 1st half, rather than take the easy FG; an interception, hardly unpredictably, left State with zero points, which combined with a missed PAT earlier in the game, gave Wake Forest hope to the very end.

I'm not prepared to list other examples, but for a onetime offensive coordinator, Mullen's judgment has been spotty all season. The play-calling on offense has been unimaginative at best. When rumors flew that he might go elsewhere next year, I hoped he wouldn't. Now I'm not so sure.

(Not that MSU should pull an Ole Miss and fire its coach after he takes 'em to a bowl.)

Feels blind

2011-12-30T07:13:00.000-08:00

How did it take me until age 42 to finally get around to listening to Bikini Kill?

The state and violence

2011-12-29T11:49:00.000-08:00

Tim Snyder has an interesting takedown of Steven Pinker's new "violence" book. Interesting b/c it's not just a snarkfest (easy to do w/ Pinker). A taste:

Pinker believes that people are more pacific when they have the time and the occasion to repeat interactions and reconsider their actions. Yet he has trouble acknowledging that, according to his own story, the one and only agent that can create that sort of cushioned society with educated minds and spare time has been the functional welfare state. This refusal seems rooted in Pinker's commitment to free-market libertarianism. His book's vision of a coming age of peace is a good example of how two trends favoring political passivity -- the narcissistic discursiveness of the American left and the antistate prejudices of the American right -- conspire in the same delusion: that while we talk, talk, talk, markets do the work of history. Unlike the Enlightenment thinkers he lauds, Pinker fails to see that the state is not simply, as he puts it, "an exogenous first domino" that fell long ago, beginning a chain of events but remaining motionless itself. L'état, c'est nous: the state is what we do, how we vote, the military service we do or do not perform, the taxes we do or do not pay, the federal grants that we do or do not apply for.

Worth a look.

Strange - I would've have expected them to prefer Gingrich

2011-12-29T07:44:00.000-08:00

Kevin Drum reports on a core Republican constituency:

Apparently, orcs support Romney. I guess I can see it: Utah, Mordor ....

Opportunity may knock, but opportunists just tape a note to the door.

2011-12-23T11:29:00.000-08:00

Via.

And now I hope to take the opportunity to stay off the damn internet for a while.

Feliz Navidad, y'all.

MSSC first sitting for 2012

2011-12-23T04:50:00.000-08:00

Up in time for Christmas. A follow-up to this post.

Asbestos/silica cases feature prominently among those to be argued, including a silica case on February 1 and, on January 30, the ConocoPhillips v. Lofton appeal in the case Philip Thomas described here.

We also note that the Dialysis Solution(s?) case, which raised the side issue whether amended Miss. Code Ann. 41-7-201 is constitutional, has been submitted without oral argument. 41-7-201 is the appeal statute in certificate-of-need cases, and the Legislature had amended it to provide for direct appeals to the MSSC. As the Court has tended to interpret the state constitution, that's probably unconstitutional, and it appears from the denial of oral argument that the Court doesn't find it a particularly tricky question. Interesting to see how that turns out.

Apologizing for their gay superpowers

2011-12-22T12:48:00.000-08:00

This is too funny. Amy Koch was a Minnesota legislator who supported amending her state's constitution to ban gay marriage. "Was" until she resigned after it was learned she'd had an extra-marital affair.

Now, on behalf of his fellow gay Minnesotans, one man has apologized to Koch for what they did to the sanctity of Koch's marriage:

An Open Apology to Amy Koch on Behalf of All Gay and Lesbian Minnesotans

Dear Ms. Koch,

On behalf of all gays and lesbians living in Minnesota, I would like to wholeheartedly apologize for our community's successful efforts to threaten your traditional marriage. We are ashamed of ourselves for causing you to have what the media refers to as an "illicit affair" with your staffer, and we also extend our deepest apologies to him and to his wife. These recent events have made it quite clear that our gay and lesbian tactics have gone too far, affecting even the most respectful of our society.

We apologize that our selfish requests to marry those we love has cheapened and degraded traditional marriage so much that we caused you to stray from your own holy union for something more cheap and tawdry. And we are doubly remorseful in knowing that many will see this as a form of sexual harassment of a subordinate.

It is now clear to us that if we were not so self-focused and myopic, we would have been able to see that the time you wasted diligently writing legislation that would forever seal the definition of marriage as being between one man and one woman, could have been more usefully spent reshaping the legal definition of "adultery."

Forgive us. As you know, we are not church-going people, so we are unable to fully appreciate that "gay marriage" is incompatible with Christian values, despite the fact that those values carry a biblical tradition of adultery such as yours. We applaud you for keeping that tradition going.

And finally, shame on us for thinking that marriage is a private affair, and that our marriage would have little impact on anyone's family. We now see that marriage is more than that. It is an agreement with society. We should listen to the Minnesota Family Council when it tells us that marriage is about being public, which explains why marriages are public ceremonies. Never did we realize that it is exactly because of this societal agreement that the entire world is looking at you in shame and disappointment instead of minding its own business.

From the bottom of our hearts, we ask that you please accept our apology.

Thank you.
John Medeiros
Minneapolis MN

Of course, in the South (and I suspect in Minnesota too), many gays and lesbians *are* churchgoers.

Dead flowers?

2011-12-21T08:02:00.000-08:00

More on the Dove-Vendler contretemps over Dove's Penguin anthology of "20th-Century American Poetry (Except Ginsberg and Plath)." (Via St. Crispin.)

Dove (on The Best American Poetry blog), objected: “What does it say about Vendler that out of the 175 poets in the Penguin Anthology she chose Gwendolyn Brooks and Melvin Tolson and Amiri Baraka to try to skewer me?” But in her review Vendler dismissed e.e. cummings as “sentimental” (as sentimental as Amiri Baraka, in fact) and was none too enthusiastic about Ezra Pound, either.

Vendler has certainly proven not to be those poets’ only detractor. James Fenton, in the London Evening Standard, wrote: “In most, though not in my opinion all, of her criticisms, Vendler put her finger on blatant weaknesses.” One: including Amiri Baraka’s “obsessive and anti-Semitic rant (‘another bad poem cracking / steel knuckles in a jewlady’s mouth’), which Vendler calls ‘showy violence’ that then turns sentimental. She’s right. What was Rita Dove thinking of when she reprinted this dreck?”

“Pretentious or ludicrous agit-prop” does not suffice in poetry, he suggested. Nor, says Alder, does poetry that, like Baraka’s, Dove can defend as “historically seminal.” If that is enough, he writes, where is the pop poet and folk crooner Rod McKuen? “Or,” asked Adler, “does the poetry have to be not just bad, but angry and bad?”

Not as much as I'd have liked about omitting poets due to permissions fees:

Among many in-print and online critics of Dove’s selection, most have focused most on poets she omitted. Among those, most significantly, are a trio of diverse biography – variously black, messianic, white, vernacular, gay, suicidal, Jewish, melodramatic: Sterling Brown, Allen Ginsberg, Sylvia Plath. Dove has explained that extortionate fee demands from publishers, primarily imprints owned by the HarperCollins behemoth, led to the exclusion of those three and others.

The absences have led some observers to ask whether the depleted selection was worth publishing. Robert Archambeau, a poet and professor of English at Lake Forest College, wrote on his Samizdat blog: “If this were the only way I could represent 20th C. American poetry, it would have been better not to do it. … As a scholar and critic, I find the representation of poetry here … to be deeply flawed. As an academic, I’d find the anthology unusable.”

I must say, if I were asked to do "20th-Century American Poetry" and then couldn't afford to include Plath, I'd tell Penguin they needed to find another editor.

... A commenter, Fred Viebahn, at the Fenton link above provides a useful quote from a Rita Dove interview that doesn't seem available online:

As to the omission of Sylvia Plath and the permissions fee problems, Rita Dove has this to say in an interview in the Dec. 2011 edition of "The Writer's Chronicle", an American magazine for professional writers and creative writing programs:

"... the worst offender by far [demanding outrageous fees] was the publisher of Sylvia Plath and Allen Ginsberg, whose 'couldn’t care less' attitude resulted in none of this house's authors being included ... Negotiations dragged on literally until the day when the anthology went into production; seeking common ground, I offered several solutions, including reducing the overall number of poems ... while meeting their exorbitant line fees ...The answer was nothing less than shocking: All or nothing. In other words, if I didn't pay the same high line fees for all their poets as well as, unbelievably, take all the poems I had initially inquired about, I couldn’t have Ginsberg nor Plath ... Pleas from upper Penguin management and even from one of the affected poets, who declared his willingness to forgo royalties, fell on deaf ears; the day before the anthology went into production, [the publisher of Plath and Ginsberg] withdrew all pending contracts and declared the negotiations closed."

Dove also explains that even if the budget had allowed paying more to this publisher's poets, it would have violated agreements with other publishers that did not permit to "be robbing Peter to pay Paul".

Pretty lame of HarperCollins. Anthologized poems are advertisements.

Hitchens, thou shouldst be living at this hour ...

2011-12-20T09:37:00.000-08:00

Obama needs to heed the Hitch example and lay off the sauce:

As you said yourself, Steve, you know, I would put our legislative and foreign policy accomplishments in our first two years against any president — with the possible exceptions of Johnson, F.D.R., and Lincoln — just in terms of what we've gotten done in modern history.

Wow. "Possible" exceptions. The strain of the job is getting to him.

Medicare spending

2011-12-20T08:52:00.000-08:00

Via DeLong, some handy charts and discussion re: the recent claim that the Reagan-era shift to PPS reimbursement (i.e., fee-for-service rather than reasonable-cost) drove up Medicare spending. The claim itself, you will see, has some problems.

Have yourself a merry little solstice

2011-12-20T08:11:00.000-08:00

I knew that Christmas occurs around the time of the winter solstice and was surely meant to do so, but I hadn't realized the strength of the connection:

In 46 BCE, Julius Caesar in his Julian calendar established December 25 as the date of the winter solstice of Europe (Latin: Bruma).

Our earliest source for Christmas on Dec. 25 is the Chronography of 354, though our MS for that is a 17th-century copy of what was supposedly a Carolingian copy ....

... N.b. that we have updated our related post on the seasons.

Readers who aren't Mississippi lawyers should skip this post

2011-12-20T07:40:00.000-08:00

We've been watching the docket calendars at the MSSC, being curious about the fact that oral arguments have already been announced for 2012, well in advance of being listed on the case dockets or on the docket calendars.

The MSSC still has no docket calendar up for 2012, but the COA has announced its first sitting. I know these arguments were announced to counsel some weeks ago.

The argued cases still aren't mentioned on the docket for each case, however.

Of course, any valid explanation must include the Snow Demons.

2011-12-19T15:12:00.000-08:00

Various bloggers have been complaining about the popular misconception that the earth's distance from the sun causes winter.

That is not in itself terribly edifying, but a little link-clicking did lead me to something I hadn't seen explained before, seasonal lag (or, why is summer hottest in August and winter coldest in January?).

... Fixed per Ugh, which is the old Sumerian word for "nitpicker."

I think much of the problem is that kids dutifully learn that the earth's orbit is an ellipse, and see pictures like this one -

- and, reasonably enough, suppose that such an eccentric orbit must make a difference in the seasons. Alas and thankfully, the Earth's orbit is about 0.0167, i.e., almost a circle.

"Said something to me that made it impossible for me to go on working for him"

2011-12-19T10:59:00.000-08:00

Christopher Hitchens, back in his salad days as a touchy Trotskyite, recalls being hired for the newborn Times Higher Ed Supp:

Thus did I become a "Social Science Correspondent" on a paper that had yet to be printed: a Gogol-like ghost job which I held for about six months before its editor said something to me that made it impossible to go on working for him.*

Footnote:

"You're fired" were the exact words as I remember them.

--Hitch-22: A Memoir at 136 & n.

Newt Gingrich is strikingly at variance with America

2011-12-18T15:54:00.000-08:00

God bless the Kevin Drums of the world for keeping up to date on sick little fucks like Newt Gingrich:

When pressed as to whether a president could ignore any court decision he didn’t like, such as if President Obama ignored a ruling overturning his healthcare law, Gingrich said the standard should be “the rule of two of three,” in which the outcome would be determined by whichever side two of the three branches of government were on.

That's fascinating, isn't it? Unless I'm misremembering my lessons from Schoolhouse Rock, just about every law ever passed was approved by two out of three branches of the government. So this means the Supreme Court would never be allowed to overturn a law. Surely even Gingrich doesn't believe such a thing?

Apparently not. In fact, he wants the judiciary to be independent 99% of the time — which brings to mind all the usual jokes about being a little bit pregnant — and defines the 1% this way:

Another branch would step in, Gingrich said, when a judge or a court makes a decision that is “strikingly at variance with America.”

My Republican friends? This is why you are a laughing-stock: because a wack-job like this is a serious candidate for your presidential nomination.

Judicial review was sketched out by Alexander Hamilton and established by a unanimous Supreme Court in Marbury over 200 years ago. It has been part of America a helluva lot longer than Newton Leroy Gingrich, who thus is exposed as strikingly at variance with America.

... Perhaps this deranged bluster is a sign of a fading candidate?

Vaclav Havel, 1936-2011

2011-12-18T05:52:00.000-08:00

The playwright who directed a revolution. Like Christopher Hitchens, a heavy smoker, though his illness dragged on for many more years.

... And, apparently on the same date, Kim Jong Il bites the dust. Whither North Korea?

... I'd felt lame having nothing more than that question to pose, but I am heartened that the much more knowledgeable Robert Farley is pretty much in the same boat.

Our periodic Sebald plug

2011-12-16T08:10:00.000-08:00

Why You Should Read W.G. Sebald.

"Rest in peace" seems like ill-wishing

2011-12-16T05:58:00.000-08:00

Christopher Hitchens, dead in Houston, TX, the poor bastard.

You pretty much can't help reading about his death on the web today, but 3QD has a great battery of posts up.

Knock back some Johnnie Walker Black in his memory today. One could spend all day compiling quotes, but here's one from the NYT obit:

In 2007, when the interviewer Sean Hannity tried to make the case for an all-seeing God, Mr. Hitchens dismissed the idea with contempt. “It would be like living in North Korea,” he said.

... David Frum has some pleasant recollections.

At most parties, though, he was wit in a white suit. He’d enter the house and push past the offer of what he called the worst phrase in the English language: “White or Red?” He’d walk into the kitchen, to the small pantry where we keep our own stock of liquor, and help himself to a slug of Johnnie Walker Black, which I learned to think of as the whisky you drink when you’re drinking more than one. Soda, no ice.

(I do it the other way round; I shall give Hitchens' style a try.)

A friend of theirs once took Christopher Hitchens and his wife Carol Blue to dinner at Palm Beach’s Everglades Club, notorious for its exclusion of Jews.

“You will behave, won’t you?” Carol anxiously asked Christopher on the way into the club. No dice. When the headwaiter approached, Christopher demanded: “Do you have a kosher menu?”

... Glenn Greenwald dissents from the Hitchens celebration, in such a manner as to reaffirm my good opinion of Hitchens. For instance:

The blood on his hands — and on the hands of those who played an even greater, more direct role, in all of this totally unjustified killing of innocents — is supposed to be ignored because he was an accomplished member in good standing of our media and political class.

Uh, hello? Did the life and work of Christopher Hitchens do one damn thing to make the Iraq War more likely or more bloody?

And this:

One of the last political essays he wrote in his life, for Slate, celebrated the virtues of Endless War.

Following the link, one finds Hitchens (in Sept. 2011) objecting to the idea that a war can be objected to simply because it is "endless."

Human history seems to register many more years of conflict than of tranquillity. In one sense, then, it is fatuous to whine that war is endless. We do have certain permanent enemies--the totalitarian state; the nihilist/terrorist cell--with which "peace" is neither possible nor desirable. Acknowledging this, and preparing for it, might give us some advantages in a war that seems destined to last as long as civilization is willing to defend itself.

That does not seem obviously wrong, and it "celebrates" such war only inasmuch as it celebrates the defense of civilization.

What both those examples from Greenwald demonstrate is Hitchens's hatred of cant. Myself, I'm happy to have Greenwald around when he's fighting the good fight, and I welcomed Hitchens when he did the same - and even when he was fighting on the wrong side. Like Socrates and many less exalted debaters, he was a gadfly.

I dissent to that usage

2011-12-15T12:39:00.000-08:00

Dissenting in part in today's Trejo v. State, Justice Randolph begins:

I concur with the adoption of the “community caretaking” doctrine, but dissent to the plurality’s result, which does not apply it.

"Dissent to"? I hadn't seen that before, which led me to wonder whether I'd been incorrectly writing "dissent from" all these years.

Bryan Garner, at least, says I'm okay:

dissent, v.i., takes from or against, not to or with.

("Against" being "idiomatic but relatively uncommon.")

The idea of "dissenting with" reminds me of the apocryphyal Churchillian blue-pencilling of a memo: "We do not fight 'with' the Germans. We fight either for or against them."

... Those who follow crim pro need to read this one for the plurality's take on the "community caretaking" doctrine. I confess to being surprised that a driver *can't* be pulled over for driving too slowly in the left-hand lane. I've been tempted to perform a few citizen's arrests myself on that theory.

Not all publicity is good publicity

2011-12-15T07:45:00.000-08:00

Jon Chait's digs are now at New York mag, not New Republic mag, but the style remains the same:

When Romney planned to have Christine O'Donnell announce her endorsement of him, he may not have considered that it would involve her talking.

I'm not really sure how having a witch endorse a Mormon is supposed to be a net plus with the GOP base, but doubtless these things are clearer to political professionals.

Chait's summary of the Romney-Gingrich dilemma:

Romney is the handsome swindler who plots to win your mother's heart and make off with her fortune. Gingrich is like the husband who periodically gets drunk and runs off to spend a week with a stripper in a low-rent motel but always comes home in the end. Which one would you rather see your mother marry?

Don't really gotta go to Lowe's, after all

2011-12-15T04:29:00.000-08:00

The New Yorker has a good summary of the manufactured outrage over TLC's All-American Muslim show and the bizarre decision by Lowe's to pull its commercials from the show.

My 7YO is too fond of building free projects at Lowe's for me to swear never to darken its doors again, but if I actually need to buy something, Home Depot is a better choice, at least until they do something equally obnoxious. (As I saw on a Buddhist blog once, there is no 100% wholesome commerce: "welcome to Samsara.")

David Mamet is batshit crazy.

2011-12-13T16:32:00.001-08:00

Daniel Larison has exhibit A:

In abandonment of the state of Israel, the West reverts to pagan sacrifice, once again, making a burnt offering not of that which one possesses, but of that which is another’s. As Realpolitik, the Liberal West’s anti-Semitism can be understood as like Chamberlain’s offering of Czechoslovakia to Hitler, a sop thrown to terrorism. On the level of conscience, it is a renewal of the debate on human sacrifice.

Do we need any more exhibits? No, I didn't think so. Wowzers. I can't boldface the crazy parts -- it's all crazy.

Housekeeping

2011-12-13T16:08:00.000-08:00

Due to a sad little person who's not content to post on her own blog but has to crap on other people's blogs as well - maybe so someone will actually read her? - we are moving to comment moderation here. Maybe temporary, maybe permanent.

Sorry for the hassle, but since you are wasting your time even reading this blog, I can't say you're using your time wisely to comment here either.

Anyway, thanks for bearing with me while I learn how to handle this new wrinkle. Maybe I can at least turn off the obnoxious word-verification thing now.

I tried increasing it to "bring a dollar" for inflation, but he corrected me.

2011-12-13T14:27:00.000-08:00

The kids' channel on SiriusXM plays a version of "Down on the Corner," which I was surprised to hear the 7YO singing in only somewhat garbled fashion. Having learned of his debased source, I picked up the CCR hits album and played the real song for him, a moment recorded via my sad BlackBerry excuse for a camera.

Happily, he is agreeable to my singing (croaking?) along, provided I don't mess with the words.

Can't possibly be true

2011-12-13T08:26:00.000-08:00

But, hey, it's Alabama:

Bill Johnson (R), who ran for governor of Alabama last year, "has a secret life as a sperm donor for lesbian couples -- even though he has campaigned against gay marriage," the New Zealand Herald reports.

Johnson has used the "online persona 'chchbill' to meet women who want help to get pregnant. Under that persona, he has discussed making donations to at least nine women without the knowledge of his family in the US."

"Three of the women are now pregnant, and Johnson has assisted another three with donations in the past month."

This is broken by New Zealand media, as Johnson has apparently been doing disaster-relief work there, in addition to his other "work":

The Herald on Sunday approached Johnson on Thursday at a restaurant in Christchurch where he had just finished dining with one of the women he had successfully impregnated.

He said the urge to become a biological father was "a need that I have".

All God's children got needs.

N.b. that Johnson was not a terribly serious candidate in the GOP primary.

"Do Palestinians exist?"

2011-12-12T15:32:00.000-08:00

Jeffrey Goldberg provides the shocking answer!

The most important issue facing our economy and our future as a nation is obviously, do Palestinians exist? Newt Gingrich, for one, thinks this is a very important question. So do I. Therefore, I would like to give my answer to the question in this very public venue: Yes, Palestinians exist. I've seen them with my own two eyes. I've seen them in their cities, I've seen them in their villages. I've seen them on the beaches, I've seen them eating peaches. I've seen them in cars, I've even seen them in bars. Gay bars in Tel Aviv, to be exact. Ah, you might ask, what was Goldblog, a known heterosexual, doing in a gay bar in Tel Aviv? Well, how was Goldblog supposed to know it was a gay bar? Okay, the Palestinian dude grinding his shwarma against the Israeli dude was a clue. But I often miss such clues. I visited Andrew Sullivan in Provincetown once and thought that everyone was really muscular and shirtless by accident.

... Btw, Goldberg isn't linked on the blogroll here for the same reason Kevin Drum isn't: their sites have this goofy way of redirecting my link to the site page in general, rather than to their blogs. This problem is magnified by the P.O.S. blogroll widget that I have no right to complain about because it's free.

Hallelujah

2011-12-12T13:09:00.000-08:00

DOLPHINS FIRE TONY SPARANO.

The entire rest of the season: Bills, Pats, Jets.

Total lunar eclipse tomorrow

2011-12-09T14:25:00.000-08:00

6:45 a.m. EST, peak at 8:05 a.m. Last one till 2014, in these parts.

What the internet would've looked like in 1951

2011-12-09T13:11:00.000-08:00

I'm not sure which is stranger, that incoming Hinds County sheriff Tyrone Lewis is selling water bottles and nylon bags, or that Jackson Jambalaya thinks it's amusing to make fun of how (some) black people talk:

That's right. Yo' Sheriff wants yo' money. Cuz we all know dat's what its about: mo money mo money mo money. Our two reviewers even gave it two special Zorro snaps. Get your Ty-rone Lewis merchandise now. And remember: no job, no problem, no credit, no problem, no money, PROBLEM!. Contact our flygirls below to get yo' Tyrone Lewis merchandise ....

But remember: Mississippi Republicans aren't racist, and anyone who suggests otherwise is a liberal bigot.

Stalin's daughter died

2011-12-09T12:50:00.000-08:00

I had missed this, but Jeffrey Goldberg notes the death last month of Lana Peters:

At her birth, on Feb. 28, 1926, she was named Svetlana Stalina, the only daughter and last surviving child of the brutal Soviet tyrant Josef Stalin. After he died in 1953, she took her mother’s last name, Alliluyeva. In 1970, after her defection and an American marriage, she became and remained Lana Peters.

Ms. Peters died of colon cancer on Nov. 22 in Richland County, Wis., the county’s corporation counsel, Benjamin Southwick, said on Monday. She was 85.

A sad, strange life.

Mysteries of the Mississippi Supreme Court

2011-12-09T08:21:00.000-08:00

A while back, we noted the oddity that the online docket calendar for the MSSC listed cases as submitted or set for argument without any docket entry's having yet been made in those individual cases.

The oddity proves even odder. The docket calendar as of today has not been issued for any 2012 sittings. But last week, we received letters from the MSSC on a couple of appeals, one to be argued in 2012, one not. Neither letter, however was noted on the individual cases' docket pages. Still ain't.

So, as the MSSC continues not to publish its internal operating procedures, we are left to infer the procedure. The sequence seems to be (1) letters to counsel, (2) update docket calendar, (3) update individual dockets.

It is particularly hard to understand why (1) and (2) shouldn't be simultaneous; preparing (3) is more time-consuming, I can see. But then why does (3) precede (2)?

None of this matters greatly in The Grand Scheme of Things, but if there's going to be a public docket online, then one would think it should accurately reflect what is going on in a given case.

... As of Dec. 13, the dockets finally state "Letter Issued by Supreme Court of Mississippi," correctly but belatedly dated to Dec. 2. No link to the letter indicating whether argument was granted or denied. Docket calendar still not up.

Feminism then, feminism now?

2011-12-09T06:42:00.001-08:00

The best thing I've read in a while, by Jenny Turner (via).

The ghosts of Christmas past

2011-12-09T06:21:00.000-08:00

"An 'American tradition' is anything that happened to a baby boomer twice."

"But fascinating, Spock."

2011-12-08T15:34:00.000-08:00

"Illogical, Captain. Most illogical."

Includes yet more reasons why the Pearl Harbor attack was an awful idea

2011-12-08T14:32:00.001-08:00

Gerhard Weinberg has an article on myths of World War 2 that is tendentious and snarky, and has the additional benefit of being correct in many respects. (Via.)

The most dangerous part of an airplane

2011-12-08T12:06:00.001-08:00

Popular Mechanics explains the amazingly stupid human error that led to the crash of Air France 447 in 2009.

Perhaps spooked by everything that has unfolded over the past few minutes--the turbulence, the strange electrical phenomena, his colleague's failure to route around the potentially dangerous storm--Bonin reacts irrationally. He pulls back on the side stick to put the airplane into a steep climb, despite having recently discussed the fact that the plane could not safely ascend due to the unusually high external temperature. * * *

Almost as soon as Bonin pulls up into a climb, the plane's computer reacts. A warning chime alerts the cockpit to the fact that they are leaving their programmed altitude. Then the stall warning sounds. This is a synthesized human voice that repeatedly calls out, "Stall!" in English, followed by a loud and intentionally annoying sound called a "cricket." A stall is a potentially dangerous situation that can result from flying too slowly. At a critical speed, a wing suddenly becomes much less effective at generating lift, and a plane can plunge precipitously. All pilots are trained to push the controls forward when they're at risk of a stall so the plane will dive and gain speed.

The Airbus's stall alarm is designed to be impossible to ignore. Yet for the duration of the flight, none of the pilots will mention it, or acknowledge the possibility that the plane has indeed stalled—--even though the word "Stall!" will blare through the cockpit 75 times. Throughout, Bonin will keep pulling back on the stick, the exact opposite of what he must do to recover from the stall.

An inexperienced pilot, a co-pilot who didn't ask enough questions, and a pair of sticks that don't work in tandem, so the co-pilot isn't forced to notice that the pilot is about to kill everyone on board.

The transcript is well worth reading.

"Black site" found

2011-12-08T09:13:00.000-08:00

One of our dungeons:

The CIA operated a secret prison in the Romanian capital Bucharest where terrorism suspects were interrogated, an investigation by the Associated Press and German media has found.

Former CIA operatives identified the building where, they said, detainees were held and tortured.

The building belongs to a Romanian agency, Orniss, which stores classified information from the EU and Nato.

Orniss has denied hosting a CIA prison and the CIA has refused to comment.

The investigation, by the Sueddeutsche Zeitung newspaper and the German TV network ARD, said those held in the secret prison included Khaled Sheikh Mohammed, who has admitted organising the 9/11 attacks.

... Scott Horton:

The Romanian officials naturally deny everything. It is noteworthy that Romania was seeking admission to NATO in the first few years after 9/11. It appears that the United States pressed Romania to cooperate with its black-site torture network as a means of gaining NATO membership — and indeed, the location of the black site itself, in a building that now sports a NATO flag out front, helps drive that point home.

Has NATO become a frat that one joins only after hazing?

But I'm sure he's really smart about something or other.

2011-12-08T08:01:00.000-08:00

The CEO of a Wall Street firm like JP Morgan should be super-informed about economic matters, right? Being paid millions of dollars and all that, he should be up on his game?

Not so much, Yglesias notes:

Next time you read an article about the behavioral response to marginal tax rates on high income earners, I would urge you to refer back to JP Morgan Chase CEO Jamie Dimon's fine whine that "most of us wage earners are paying 39.6 percent in taxes and add in another 12 percent in New York state and city taxes and we're paying 50 percent of our income in taxes."

The thing about this is that the actual top marginal income tax rate is 35 percent. The entire debate in congress over taxes is that President Obama wants to restore the top marginal rate to the level that Dimon thinks it already is. Meanwhile, Dimon doesn't even know what tax rate he pays. Just saying.

I would also note that, as far as I can tell, no one is forcing Mr. Dimon to live in New York. Connecticut has a lower max (6.5% vs. 8.97% in NY/NJ).

Dies illa, vivet in ignominiam

2011-12-07T05:56:00.000-08:00

So, beside that unpleasantness outside Honolulu in 1941, what else happened on December 7?

43 BC – Marcus Tullius Cicero is assassinated.

1815 - Execution of Marshal Ney.

1862 – US Civil War: Battle of Prairie Grove, Arkansas.

1869 – American outlaw Jesse James commits his first confirmed bank robbery in Gallatin, Missouri.

1917 – World War I: The United States declares war on Austria-Hungary.

1930 – W1XAV in Boston, Massachusetts broadcasts video from the CBS radio orchestra program, The Fox Trappers. The broadcast also includes the first television commercial in the United States, an advertisement for I.J. Fox Furriers, who sponsored the radio show.

1963 – Instant replay is used for the first time in an Army-Navy game by its inventor, director, Tony Verna.

1965 – Pope Paul VI and Patriarch Athenagoras simultaneously revoke mutual excommunications that had been in place since 1054.

1972 – Apollo 17, the last Apollo moon mission, is launched. The crew takes the photograph known as The Blue Marble as they leave the Earth.

1982 – In Texas, Charles Brooks, Jr. becomes the first person to be executed by lethal injection in the United States.

Also the birthday of Bernini, Nestroy, and Cather, as well as Noam Chomsky and our own Thad Cochran. And who could forget the feast day of St. Ambrose?

That's a lot to commemorate - get busy!

... Kingfish links a fine collection of photos of Pearl Harbor. The captions leave something to be desired; # 28, "the battleships U.S.S. Casin and the U.S.S. Downes," promotes two destroyers to battleships, as well as misspelling the name of the Cassin. (The single-gun turrets was my second clue, right after the absence of any states named "Casin" or "Downes.")

The old WW1 whodunit

2011-12-05T07:28:00.000-08:00

Richard J. Evans (whose Third Reich trilogy is very good) reviews the McMeekin book on The Russian Origins of the First World War that we noted a while back. Evans is not persuaded that any anxiety over the Straits led Russian to push for war in 1914, which undercuts the thesis of the book.

Russian "war guilt" more generally is an interesting question. Evans underplays the Russian general mobilization (vs. Germany as well as Austria-Hungary); I don't think it suffices to say that Russia just didn't have a plan for mobilizing vs. the latter, as gross negligence pretty much substitutes for malice. Unless my memory has completely funked it, the fact is that the first great power to mobilize vs. another was Russia vs. the German-speaking powers. That is too serious for Russia to be exonerated.

Evans does however note the shady French involvement:

any historian who writes on Russia and the origins of World War I surely needs to give the French alliance more careful consideration than it is accorded here. In January 1914, the French Prime Minister told Maurice Paléologue, about to depart for St. Petersburg to take up the post of French ambassador there, that “war can break out from one day to the next … Our [Russian] allies must rush to our aid. The safety of France will depend on the energy and promptness with which we shall know how to push them into the fight.” In the Russian capital in mid-July 1914, a top-level French delegation was enthused by displays of Russian military strength. “There’s going to be a war,” the wife of the man who would shortly be appointed Russian commander-in-chief told Paléologue: “There’ll be nothing left of Austria. You’re going to get back Alsace and Lorraine. Our armies will meet in Berlin. Germany will be destroyed!”

Paléologue's exact conversations with the Russians in July 1914 have long been suspected of helping push Russia into war.

On being an editor

2011-12-03T10:27:00.000-08:00

Deslauriers was about to realize his old dream: an editor's chair, in other words the ineffable joy of controlling other people, of carving up their articles, of commissioning copy and turning it down.

-- Flaubert, Sentimental Education, 2.3.

... "Ineffable" is carefully chosen there.

Don't avoid this trivia

2011-12-02T14:52:00.000-08:00

Two chief justices of the United States have been portrayed on American currency (Federal Reserve notes).

(1) Who are they?

(2) What denomination did each appear on?

Answer.

NYRB slapdown

2011-12-02T14:31:00.000-08:00

Rita Dove is not a favorite poet of mine, but her slapdown of Helen Vendler's NYRB review is pretty effective.

But -- no Sylvia Plath? I don't know what's worse, that Dove omits her, or that Vendler doesn't remark it.

... UPDATE: It is said that copyright issues prevented Plath's inclusion. Interesting if true.

Christa Wolf R.I.P.

2011-12-02T06:33:00.001-08:00

Christa Wolf died yesterday, aged 82 -- perhaps the best-known feminist from the other side of the Iron Curtain. In her early 30s she was a (rather unsatisfactory) informer for the Stasi; later, after her 1968 novel The Quest for Christa T., the regime retaliated against her. (The bit about "exile" in the obit seems a bit much; she died in Berlin.) The Guardian obit ranks her with Grass as "the nation's most important postwar writer."

Back in my grad-school days, I studied several of her feminist essays, which I recall as being more profound in some ways than the Western feminists I was reading; alas, the details fade, and who knows where that sheaf of photocopies ended up .... Perhaps someone will put together A Christa Wolf Reader.

(Via Jessa Crispin, who links to a good interview with her.)

"This book is flawless, because all its deficiencies are deliberate products of art."

2011-12-01T09:14:00.000-08:00

More bad-book blogging: students of brilliant invective will find this worth a look. Another sample:

a book that clatters around in a dark closet of irrelevancies for 450 pages before it bumps accidentally into its index and stops

Via.

Appellate-advocacy asininity

2011-12-01T06:24:00.000-08:00

Howard Bashman relays a really choice example from California:

Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel's misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim's counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case – including a boilerplate accusation of misconduct against appellants' counsel and a boilerplate request for sanctions based on a purportedly "frivolous" appeal – will not be countenanced. Donahue's response to this court's notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue's conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.

The "false pretenses" part pertains to requesting time based on the alleged need for further research on a brief that in fact was simply cribbed from a prior case.

Which is worse - being hit for a $10K sanction, or having the court compare you to an ostrich? I would consider myself fortunate to get off with the latter, personally.

... This is a nice touch:

It is difficult for us to express how wrong that is. Sanctions are serious business. They deserve more thought than the choice of a salad dressing. "I'll have the sanctions, please. No, on second thought, bring me the balsamic; I'm trying to lose a few pounds." A request for sanctions can never be so lightly considered as to be copied word for word from another brief – much less copied in reliance on facts from another case that do not obtain in the present one. A request for sanctions should be reserved for serious violations of the standard of practice, not used as a bullying tactic.

Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It's time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions. * * *

We sanction Mr. Donahue in the amount of $10,000. In arriving at that amount, we have struggled with the absence of precedent. "How much do you sanction an attorney who lies to the court, seeks unwarranted sanctions, bullies opposing counsel, shows no remorse, and effectively vows to continue such tactics by endorsing his conduct when challenged on it?" does not seem to have been a question yet addressed by other courts.

Blogger glitch

2011-12-01T05:52:00.000-08:00

I've just learned that Blogger has a "spam inbox" for comments it imagines to be spam, which seems to be batting about .500.

So if your comment mysteriously never posted, it wasn't me. Will try to keep an eye on that in future.

Don't waste your time

2011-11-30T15:20:00.000-08:00

Unless you are actually saving someone's life right now,* there is absolutely no better use of your time than clicking on these three links regarding three of the worst books ever.

(Yes, Amazon is evil, but click through anyway to read all the reviews; just don't *buy* the books.)

____________________________________________
*And really, it may depend on who it is.

Amazon = evil.

2011-11-30T11:20:00.000-08:00

I've quit and rejoined Amazon.com before due to their evil practices, and I recognize the need to save a buck in this sad economy.

But take a look at this and its links, and then maybe you will be more inclined to check out the available alternatives before hitting "Place Your Order" with Amazon.

Is it really worth a buck or two to support such a company?

Apple's new gopPhone?

2011-11-30T04:22:00.000-08:00

NYT:

Ask Siri, Apple’s virtual assistant for the iPhone, for ideas on where to eat dinner or whether you need an umbrella, and it will deliver helpful localized suggestions.

But try asking it to find a local abortion clinic, and the software turns up a puzzling blank — even in areas that clearly have such clinics. The response in Manhattan is: “Sorry, I couldn’t find any abortion clinics.” * * *

Megan Carpentier, the executive editor at a blog called The Raw Story, noted that Siri users in the Washington area are directed toward antiabortion pregnancy centers in Virginia and Pennsylvania — not the nearby Planned Parenthood.

In the future, you'll be able to buy not just a smartphone, but a partisanphone that will only find politically correct search results and load suitably biased apps.

At least the phone doesn't respond with the names of local adoption agencies.

... NMC in comments has a fine critique of search engines' utter uselessness for finding valuable restaurant reviews. Sounds to me like someone needs to start a website ....

Not a flip-flopper like that Romney

2011-11-29T12:04:00.000-08:00

Newt Gingrich, 2011:

I wouldn't lie to the American people. I wouldn't switch my positions for political reasons.

Newt Gingrich, 2005:

If I see somebody who's earning over $50,000 a year, who has made the calculated decision not to buy health insurance, I'm looking at somebody who is absolutely as irresponsible as anyone who was ever on welfare. Because what they've said is, A, I'm gambling that I won't get sick, and B, I'm gambling that if I do get sick, I can cheat all my neighbors. Now, when you talk to hospitals, a very significant part of their non-collectibles are people who have money, but have calculated it's not worth the cost to pay. And so I'm actually in favor of finding a way to say, whatever the appropriate level of income is, you ought to have either health insurance, or you ought to post a bond. But we have no right in this society to have a free rider approach, if we're well off economically, to cheat our neighbors.

I'm sure Newt had excellent, non-political reasons for saying this in 2005 and presently condemning Obama as a socialist for the PPACA's insurance mandate.

(It's not a total "gotcha" by any means; one could like the mandate as a policy, but think it unconstitutional. But somehow I suspect that is not Newt's position.)

Legal writing tip of the day

2011-11-29T11:24:00.000-08:00

From Tertullian, who turns out to have his own website (h/t Larison - who else?):

Est sapor et in paucis.

There is power also in brevity.

... I am tempted to use the following in a statutory-interpretation context sometime, but probably won't:

But this is the usual way with perverse and ignorant heretics; yes, and by this time even with Psychics universally: to arm themselves with the opportune support of some one ambiguous passage, in opposition to the disciplined host of sentences of the entire document.

"The Secretary, like the 'perverse and ignorant heretics' whom Tertullian correctly criticized, ...."

(I am not sure who these "Psychics" were, but I think they may have been those who tolerated divorce and whose sexual morality was not up to Tertullian's gold standard, at least after he became a Montanist; the New Advent Encyclopedia simply equates the term with "catholics.")

... I am proud to report that, at least as of the evening of November 29, 2011, this humble site is the top Google hit for "perverse and ignorant heretics."

"The tragedy of nobody in particular, but of the poor human race itself"

2011-11-28T14:35:00.000-08:00

Reviewing Ulysses:

At his worst he recalls Flaubert at his worst - in L’Education Sentimentale.

What on earth did Wilson have against Sentimental Education?

That was July 1922 - Wilson did rather well laying hands on a copy of the book under review (published on Groundhog Day, Joyce's birthday) - but at least by 1938, in The Triple Thinkers, Wilson's opinion had improved: Flaubert's book is now "one of his most remarkable books" and "rather underestimated." He doesn't add, "by my younger self."

Tho he does say later in the essay that it "is likely, if we read it in youth, to prove baffling and even repellent." (Evidently.) Here Wilson gets it right:

... Flaubert's novel plants deep in our mind an idea which we never quite get rid of: the suspicion that our middle-class society of manufacturers, businessmen and bankers, of people who live on or deal in investments, so far from being redeemed by its culture, has ended by cheapening and invalidating all the departments of culture, political, scientific, artistic and religious, as well as corrupting and weakening the ordinary human relations: love, friendship, and loyalty to cause - till the whole civilization seems to dwindle.

If that sounds to you like a treatment that's been done before, I would respectfully submit that Flaubert did it first, and perhaps best.

... The title of Wilson's book in fact comes from an aside in a letter to Louise Colet: "what is an artist if he is not a triple thinker?"

Word challenge!

2011-11-28T14:02:00.000-08:00

Do you know the difference between --

impassable and impassible?

impartible and impartable?

forcible and forceable?

educable and educible?

(H/t Bryan Garner's Modern American Usage.)

Useful advice from George C. Marshall

2011-11-28T12:17:00.000-08:00

Marshall, not long after returning from Paris [in 1953], called Kennan into his office. "After discussing the problem on which we were to work he said that he had only one piece of advice to give: 'Avoid trivia.' That was a nice laconic piece of advice, wasn't it?"

-- Quoted by Tom Ricks.

Kimberly Webb Joyner, 1970 to 2011

2011-11-27T14:42:00.000-08:00

James Joyner has been one of my favorite conservative bloggers for years now - always someone whose opinion I could respect. I remember when he blogged about his marriage and honeymoon. Now, Kimberly has passed away, leaving James and two young daughters. God bless them all.

When an irresistible force meets an immovable object ...

2011-11-25T15:55:00.000-08:00

... they are likely the offense and defense of the LSU Tigers.

Damn. I was hoping Arkansas was going to make the BCS interesting, and instead LSU made them look like Mississippi State.

The equity end-run around Rule 60

2011-11-25T13:43:00.000-08:00

Via Bashman, an interesting op by Judge Southwick on the use of "an independent action in equity" to reopen a judgment long after the Rule 60 deadline has failed.

Not an easy thing at which to succeed, but having lost one's underlying case before the eighth federal judge ever to be impeached and removed from office -- and having the benefit of a House report attesting to the judge's coziness with your opposing counsel and expert -- turns out to do the trick.

What font will outlast the human race?

2011-11-24T21:52:00.000-08:00

Futura. (Not Times New Roman -- it just seems like that on most days.)

... Of course, that also means that the American president whose name will survive longest is Nixon.

... Did they pick Futura because Kubrick had just used it for the titles in 2001?

Don't be an ostrich - UPDATED

2011-11-23T12:18:00.000-08:00

Tomorrow is Turkey Day, but today is Ostrich Day, as Judge Posner and the 7th Circuit issue the first appellate decision I've seen with color illustrations for emphasis.

(And some good appellate advice on acknowledging adverse authority.)

(Via.)

... Updated after I found one of the op's pix online. Actually, I suspect that many lawyers wish to do just that during oral argument in the 7th Circuit.

... Philip Thomas notes the opinion and links to one of the chastised attorneys, who does not concur with the court's evaluation of his advocacy:

The case Posner said was controlling, Abad v. Bayer Corp., dealt with a product liability case out of Argentina.

“Not only is it on a different continent, the record we presented had no fewer than ten cases dismissed by Mexican courts proving that Mexico does not have any jurisdiction over foreign defendants,” McKeand said.

Well, let's see what the 7th Circuit thought:

In their response the defendants cite Abad repeatedly and state accurately that its circumstances were “nearly identical” to those of the present case. Yet in their reply brief the appellants still don’t mention Abad - let alone try to distinguish it - and we take this to be an implicit concession that the circumstances of that case are indeed “nearly identical” to those of the present case.

Ah, so the case was so entirely distinguishable that counsel ... didn't mention it?

I've seen this vice before: an attorney responds to what he thinks is a stupid argument by simply ignoring it. NEVER DO THIS. If the opponent's argument rests on John Adams' being the first president of the United States, point out the error (and, if possible, find a case to cite). If the opponent contends that 2 + 2 = 5, point out the error (and, if possible, find a case to cite).

Test your web page!

2011-11-23T07:07:00.000-08:00

Via a commenter at the Volokh blog, here is webpagetest.org, which will diagnose how quickly (or not) your page loads. Pretty cool.

Area man buys Moby compact disc

2011-11-23T06:56:00.000-08:00

JACKSON - An area man yesterday became the first person since 2009 to purchase a compact disc by the electronic-music artist Moby, whose music has been downloaded by tens of millions of fans.

T.B. Anderson bought the recording not only on disc, but also from a retail store, Best Buy.

"I was watching those Bourne movies again and I noticed they all had the same song for the end credits, which turned out to be by Moby. And I liked the song, and he sounded vaguely famous, so I thought I would get the CD," Anderson said, referring to the song "Extreme Ways," which first charted in 2002 when compact discs were already becoming obsolescent.

Asked why he chose a CD rather than downloading the music to his iPod, Anderson confessed he had never "gotten into any of those i-thingies."

"Don't you have to have a Mac for that?" he wondered aloud.