RINO

The acceptance of the fundamental truths of evolution are quite as necessary to sound scientific thought as the acceptance of the fundamental truths concerning the solar system.

-- Theodore Roosevelt, in a critical review of H.S. Chamberlain's racist tome The Foundations of the Nineteenth Century. Between that and his attitude towards corporations, he would poll somewhere between Michele Bachmann and Jon Huntsman in the current GOP race.

... TR drops an amusing footnote:

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

Bummer

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

... Via LGM, who do however cheer me up some by reminding me of Louis Menand's takedown of Steven Pinker.

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

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

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

Jesus wept.

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

Contempt of (appellate) court

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

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

I had wondered when someone would notice us

USDA declares all Mississippi counties disasters.

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

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

Good appellate advice from Justice Scalia

Scalia gave some tips at a recent speech (via H/A). My fav:

"The worst mistake advocates make is not to welcome questions from the bench, to take them as interruptions," he said. Scalia, who is known to ask questions, said he can sometimes see lawyers arguing cases thinking, " 'This damn fool's wasting my time. If he didn't ask me these questions, I could be regurgitating my brief.' "

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

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

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

An amendment to the Declaration of Independence

Seen pasted onto a copy hanging hereabouts, in the midst of the recitation of grievances against George III:

For unrepentant faylure and Refusal to provide free Chiurgical care and Physick;

My libertarian friend denied having done that, but tanquam ex ungue leonem.

Too bad the Persians never thought of that

Mary Beard is surely right to argue that Alexander the Great has been heavily romanticized even (or especially) by professional classicists, but her debunking of him and of Philip II begins to seem a tad overboard when she writes this:

Like most historians, Worthington stands in awe of Philip’s invention of the sarissa, his devastating new piece of military hardware; but it was only an extra-long spear, so it is hard to see why Philip’s enemies didn’t just copy it.

Sure, just turn out a few hundred extra-long spears, and voila! military genius! This despite the well-known fact that phalanx tactics required quite a bit of drill and practice. Beard probably also thinks that the French were silly to lose the Hundred Years War, when all they needed was to make some longbows.

Not all attention is good attention

St. Dominic and Jackson lawyer Whit Johnson appear on the front page of the weekend WSJ:

On April 7, a 48-year-old Baptist preacher named Gary Steve Moore had spinal-fusion surgery at St. Dominic Hospital here. Hours later, he was dead.

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

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

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

Dr. Lewis’s part-ownership of a medical-device company is far from unique in the world of back surgery. Rather than use spinal implants from third-party manufacturers, scores of surgeons have started their own device makers to churn out similar designs, putting themselves in a position to benefit financially from the hardware they insert into patients.

The article (subscriber-only) goes on to detail Spinal USA's effect on spinal implant surgery. Several quotes from Johnson, but nothing from the widow's lawyer, assuming she has one -- it makes me wonder whether he or she was an unnamed source for the article.

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

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

Free Friday fonts

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

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

Well, recuuuuuuuuuuuuuuse you!

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

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

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

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

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

... Speaking of recusal, Justice Randolph self-recused from this matter last month:

The undersigned Justice has participated as defense counsel for numerous defendants in a multitude of asbestos cases both in-state and nationally, and in exercising his judicial discretion, has elected to recuse himself from any involvement in this matter.

We don't think that was by any means required, but any given judge or justice is the first, best authority on his or her own recusal. Justices Pierce and King also did not participate; the order was otherwise unanimous.

Yep.

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

Well, there *is* Bill Belichick.

NOLA notes

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

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

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

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

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

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

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

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

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

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

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

Legal writing tip of the day

No one can write decently who is distrustful of the reader's intelligence, or whose attitude is patronizing.

-- E.B. White, The Elements of Style

(Via.)

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

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

Aide-memoire

Why can I never remember this?

It is clearly the better practice to include all potential assignments of error in a motion for new trial. However, this approach is not always practical. Because a trial transcript is rarely available within the time frame for filing post-trial motions, the most prudent attorney cannot be expected to pinpoint every objection raised and ruling made during the course of the trial. Thus, when the assignment of error is based on an issue which has been decided by the trial court and duly recorded in the court reporter's transcript, such as the admission or omission of evidence, we may consider it regardless of whether it was raised in the motion for new trial.

I.e., no, a Rule 59 motion is *not* a prerequisite to filing an appeal. Kiddy v. Lipscomb, 628 So. 2d 1355, 1359 (Miss. 1993).