BurtLaw's Law And Everything Else

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BurtLaw's Law And Everything Else
BurtLaw.Com	- LawAndEverythingElse.Com - Copyright (c) 2001 Burton Randall Hanson

"[F]or every specialist field...we should seek...suitable spokesmen...to act as a centre for information...." Carl Jung

09.26.2001-10.02.2001 Weblog & webzine on law and its relation to everything else - updated daily.

BurtLaw Daily Quick Links (Daily Weblog):

-- USSCt decisions 2000-01 term + highlights (Cornell)

-- Joseph Nye: how to protect homeland (NYT) More...

-- NJ's AG: police may stop based on ethnicity (NJ)

-- Readers pick top "Obscure Store" stories (ObscStore)

-- #41 apologizes to #43 for funding bin Laden (Onion)

-- Wendy McElroy: war's unintended results (Fox)

-- Risk to liberties in AG's proposed laws (BosGlobe)

-- Did Bill C. "almost get" bin Laden? (NRO)

-- Harvard child psychiatrist gives tips (ABC/Yahoo)

-- Q&A on biological/chemical warfare (ABC/Yahoo)

-- "Therapy dogs" head for NYC (KOIN)

-- Impressionist still life exhibit opens at Phillips

-- Bioterrorism: emerg. guide, smallpox outbreak (Mike's)

-- Good Wm. F. Buckley on Muslims in U.S. (TownHall)

-- Chapman: don't use flag to gag speech (TownHall)

-- Good op. piece on bin Laden's "trap" (NewYorker)

-- Fight terrorists by suing them? (NewYorker)

-- Malcolm Gladwell on air safety (NewYorker)

-- Latest hero dog pics: here, here, here, here, here, here

-- Latest hero dog stories: here, here, here

-- Why does U.S. use "code names"? (MoscowTimes)

-- Condit is on Homeland Security Committee (KXTV)

-- Ebert on attack's effect on movies (CSTviaMetaFilter)

-- Woodrow Wilson's shame (AsianWeek)

-- Pentagon says no need to reinstate draft (NYPost)

-- How the Saudis et al treat women (NYPost)

-- How the terrorists steal identities (SundayUKTimes)

Earlier Daily Quick Links (Daily Weblog): [click here]

The war on terrorism. I am posting current original material relating to the events of 09.11.2001 and thereafter on this page. Earliest entries may be found here, and more recent ones here. If you wish to contact me, click here.

Propaganda. The word "propaganda" comes from the Latin and originally was the name for the college or congregation of Roman Catholic cardinals charged in 1622 with propagating the faith. The term now generally refers to the material and techniques used by proponents or opponents of a cause or doctrine. Aaron Delwiche, a fellow connected with the University of Washington, has created a web site, Propaganda (via MetaFilter), devoted to educating people about propaganda. As Delwiche puts it, "[P]ropaganda can be as blatant as a swastika or as subtle as a joke. Its persuasive techniques are regularly applied by politicians, advertisers, journalists, radio personalities, and others who are interested in influencing human behavior. Propagandistic messages can be used to accomplish positive social ends, as in campaigns to reduce drunk driving, but they are also used to win elections and to sell malt liquor." Delwiche "discusses various propaganda techniques, provides contemporary examples of their use, and proposes strategies of mental self-defense." For an example of our military propagandists at work picking "operation code names," like the discarded "Operation Infinite Justice," click here. I like to think that people here in America are becoming more "sophisticated" in recognizing those who use words and images and music and logical fallacies to try manipulate us. One of the reasons people have appreciated Mayor Giuliani so much in the days following 09.11 is that he didn't try hide his pain, didn't try adorn his speech, didn't try be someone he wasn't, didn't try sell us a bill of goods, didn't try manipulate us. He told us the truth and he "told it straight." Emerson said, "Nothing astonishes men so much as common sense and plain dealing." He also said, "[A]ll nature helps him who speaks the truth. Speak the truth & the very roots of the grass...move & stir to bear you witness. Speak the truth & the innocent day loves you & serves you." And, finally, he said, "[I]t is by no means necessary that I should live, but it is by all means necessary that I should act rightly." History, with its cold eye, ultimately will sift through all the facts, the footprints each of us leaves behind in the sands of time, and will tell the true story of that which we do in the days ahead. It is therefore "by all means necessary that [we] should act rightly." (09.25.2001)

Too big to fail? Not long after the attack on 09.11 I briefly alluded to the notion that some businesses are "too big to fail" and "the curse of bigness." Click here. John D. Donahue, who teaches at Harvard’s John F. Kennedy School of Government and is co-author with Robert B. Reich of New Deals: The Chrysler Revival and the American System, has written an interesting opinion piece for TomPaine.Com on the general subject of when taxpayers should save big corporations and more specifically on the proposed (or possibly already-enacted) bailout of the airline industry. Click here (via MetaFilter). Donahue begins by saying, "The federal government is poised to bail out the airline industry, devoting staggering amounts of public money to fix a shifting and ill-defined problem with little analysis and even less public debate." The history books are filled with sad stories of legislators rushing to "just do something" in times of national crisis. Minnesota has its own sad example, mirroring the federal congress' example, of legislative stupidity in the days following American entry into WWI. Click here. Some cool heads are taking a look at Attorney General Ashcroft's legislative proposals. (See, e.g., Dave Kopel's opinion piece in NRO, 09.24.2001.) Those of us who care about civil liberties -- our liberties -- should be thankful for that and should be doing our best to influence our leaders to do the right thing, with speed but not without adequate deliberation. Congress needs to be similarly cool-headed and deliberative in dealing with other emergency legislative requests and proposals. More... (09.25.2001)

Bush v. Powell? William Kristol, the "conservative" commentator, writes in today's Washington Post, in a piece titled Bush v. Powell, "Since his speech to Congress last Thursday, virtually every major political figure has gone out of his way to support the president. Except for his secretary of state. On the Sunday talk shows, Colin Powell revised or modified many of his boss's remarks." I'm suspicious of Kristol's opinion on this. Few people have been scouring the web's news and opinion sources as much as I in recent months. My opinion, based on what I've been reading, is that for some time "conservatives" who don't like Powell -- and that's most "conservative" commentators -- have been going out of their way to discredit Powell in Bush's eyes. There are a number of reasons they don't like him. One, of course, is he's "pro choice" on the matter of government regulation or restriction or outlaw of abortion. Another is he persuaded #41 not to authorize the military to "go after" Sadam Hussein and "finish him off" in the Gulf War -- they seem to assume, as if it's transparent, that we wouldn't be in the mess we're in now if #41 had ordered the military to do so. (Those are two reasons they don't like him. You can use your imagination as to their other reasons. You might or might not be right.) They apparently want a homogenous, not a farraginous, White House inner circle. In my opinion, one of the virtues of the Bush inner circle is that it is not a homogenous bunch of flatterers all telling the President the same thing, all toeing the "conservative" party-line, but a group of advisors with vast experience, all of it valuable, not all of it the same. Powell's the military man. He served in Viet Nam. He personally has experienced the horror of war. If he is a voice for prudence, a voice for calm, a voice for deliberation -- as Ike was both as Supreme Commander and later as Commander in Chief -- we should all be glad. But many of the "conservatives," who have their own agenda that isn't necessarily the right agenda for America in all respects, aren't glad about that. They were discrediting Powell before 09.11 and they're continuing to do so now. (09.25.2001)

What kind of a guy is General Powell? I think you can tell a lot about him from reading his widely-distributed 18-lesson Primer on Leadership and from reading this profile of him published in May by Salon. (09.25.2001)

Top 10 signs your wife is having an affair with the Jolly Green Giant. Dave Letterman showed us last week that he's not just good at irony. He was quite moving the first night back after the 09.11 attack, and throughout the week the musical performers -- including Tori Amos and Jewel -- were astonishing. Last night's show featured some amazing contrasts: Rudy Giuliani, who was given a couple well-earned standing ovations; Miss "Woo Hoo!" America (see below), who acted like, well, the typical Miss America; and his top 10 list. Dave's top 10 lists have been pretty lame in recent months. Last night's one - Top 10 signs your wife is having an affair with the Jolly Green Giant - was loaded with hilarious double-entendres. See, e.g., #'s 6, 4 & 2. Dave seemed to blush as he read them. (09.25.2001)

Can she "unify the nation"? Who? Miss "Woo Hoo!" America, of course -- a 21-year-old Oregonian. According to The Oregonian, she greeted media on Sunday "with a 'woo hoo!'" and announced that she loves to "be there" for people and that she sees her role "really to rally the spirit of the American people," to "bring healing to the nation," and to "unify the nation." The article quotes her fifth grade teacher as saying, "She's very humble -- an everyday sort of person." (09.24.2001)

Words matter. Last week I found myself pulling down from a book shelf a volume of Lincoln's writing, and rereading his Second Inaugural Address. I don't know whether it was effective as a speech (any more than his Gettysburg Address was), but it is an amazing literary document, mystical and moving, and rather obviously the work of a man with a great heart and enormous depth. Saturday night I pulled out my trusty copy of Justice Holmes' Occasional Speeches and read a bit in it. Sunday I received an e-mail from a law student I know pretty well, who did not know I'd been revisiting Lincoln and Holmes. She wrote, in part: "Have been re-reading some patriotic stuff...Holmes's address at Keene, NH, 1884, Lincoln's 2nd inaugural, which I have a hard time imagining ever being matched by any U.S. president, ever...." I think I like that kid's taste. :-) I pulled out Holmes' speeches again and reread the Keene, NH speech. It was delivered on Memorial Day, May 30, 1884, before John Sedgwick Post No. 4, Grand Army of the Republic, 18 years before Holmes was appointed by Teddy Roosevelt to the U.S. Supreme Court. If you haven't read it, you should. Justice Frankfurter, Holmes' disciple, described him once as "a literary genius of the first magnitude." The speech bears that out. I'm always touched by this passage:

It is not of the dead alone that we think on this day. There are those still living whose sex forbade them to offer their lives, but who gave instead their happiness. Which of us has not been lifted above himself by the sight of one of those lovely, lonely women, around whom the wand of sorrow has traced its excluding circle -- set apart, even when surrounded by loving friends who would fain bring back joy to their lives? I think of one whom the poor of a great city know as their benefactress and friend. I think of one who has lived not less greatly in the midst of her children, to whom she has taught such lessons as may not be heard elsewhere from mortal lips. The story of these and her sisters we must pass in reverent silence. All that may be said has been said by one of their own sex ---

But when the days of golden dreams had perished,

And even despair was powerless to destroy,

Then did I learn how existence could be cherished,

Strengthened, and fed without the aid of joy.

Then did I check the tears of useless passion,

weaned my young soul from yearning after thine

Sternly denied its burning wish to hasten

Down to that tomb already more than mine.

Times have changed. But words still matter. We saw that in the early gaffes -- in the use of the word "crusade" and the phrase "infinite justice" -- gaffes that suggest not errors of the heart but a heedlessness of nuance and a lack of grounding in history and literature. But we also saw it in the writing of President Bush's speech before the joint session of Congress, a beautifully, carefully crafted speech, delivered as well as any Presidential speech I've heard, and I've been listening to them for 50 years. (09.24.2001)

BurtLaw Places. Crane's Beach at Ipswich, MA, an hour's drive north of Boston and Cambridge, a beach that Justice Holmes himself said has "the look of magic." Click here.

Andre: wedding to Steffi on hold. Are they putting it off as their contribution to the War on Terrorism? Did one of them want out and use "the war" as a lame excuse (as in: "I think this changes things -- we can't be thinking of our happiness at a time like this. Besides, one of us might get called to serve")? Nothing in the story suggests anything like that, or that it has anything to do with the war. But Andre doesn't exactly give a clear reason. The baby is due in December. He says, "The question isn't so much are we going to." He adds they're going to wait until "after everyone has recovered." I don't know, Andre. As one who watches tennis on TV at least once a year, I sorta would like to know. As a Minnesota politician once said, "The peepull hef a right to know." (09.24.2001)

Vance's bright idea. As I've said, we need to encourage creative thinking on ways to defend ourselves against domestic terrorism. But we also must remember that the creative process is at least a two-part process. The first part, the creative-blockbusting part, involves divergent thinking. We in America, with our creative freedom, are better at that than anyone. A teacher of creative writing at an Ivy League school told me that the students who come from so-called "communitarian" cultures are not particularly good at that. We are. But there is also a less-creative part to the process -- the part when we step back and rationally consider and evaluate that which we have created. What I'm saying is, although we should welcome and consider all ideas and shouldn't emotionally shout down any of them, we also should subject each of them to rational scrutiny. Rational scrutiny of a creative idea to defend ourselves against domestic terrorism includes asking questions such as a) whether the idea is consistent with our values, b) whether the potential benefits of the idea are outweighed by the costs, and c) whether the idea is common-sensical. Comes to the front an idea by Vance Opperman of Wayzata, MN, a wealthy businessman with considerable contributor's clout in Minnesota Democratic Farmer-Labor politics and national Democratic politics, including as a prominent contributor to Clinton and Gore Presidential campaigns and to the Gore-Lieberman Recount Fund. Mr. Opperman has ways of getting attention that some of us do not have. In a guest opinion piece on 09.23.2001 in the Minneapolis Star-Tribune, a paper that has not always been kind to him (click here), Mr. Opperman proposes a "Homeland Defense Corps" that will be "a new branch of the military." Repeatedly using the refrain "So draft us now," he argues that no one is too old to serve in the "HLDC" (which sounds to me like another New Deal "alphabet agency"). He says he'd "be honored to serve" in a unit protecting a recreation center or a mosque or a water plant, so "draft us now." I heard Mr. Opperman give his first oral argument before the Minnesota Supreme Court years ago in a case in which he was seeking the suppression of drugs seized from his client in an automobile search. He is an effective rhetoritician, and I'm surprised he's still financing others' campaigns instead of entering the fray himself. He can do that without being "drafted" if he wants. He has the money to fund his own campaign, and he has the ability. Similarly, he can volunteer to help guard a recreation center or other public building without being "drafted," if he wants. We all can volunteer to help and undoubtedly huge numbers of us will, each in our own way -- which, after all, is the American way. And we will do so without some government bureaucrat, employed by an expensive government agency (the "HLDC"), telling us we must do so, must do it now, must do it his way, or be sent to jail as a draft violator. In my opinion, if one wanted to create opposition to the war, one couldn't come up with another scheme more likely to do so. If you've been following reports of life in Iran and in Afghanistan, you know that the way of some Islamic fundamentalist governments is to tell their people what they may do and not do. (Click here and here.) For example, in Afghanistan some Taliban officer can drag you out of your home and force you to say your prayers or punish you for not growing a beard if you're a man. That is not the American way. In Kashmir the other day, an edict went out to women to wear the Islamic veil in public -- or risk having disfiguring acid thrown in their faces, something that has occurred already. (Click here.) That obviously is not the American way. I respectfully submit that Mr. Opperman is a good man with a bad idea. The way for America to respond to a terroristic attack by fascist fanatics is not to make our system like unto theirs, a system that relies on military coercion to force people to be good citizens. In my opinion, if we do that, we will have lost the battle to protect our country and our values before we have even begun it. We will have become the enemy. (09.23.2001) Update: How to protect the homeland, by Joseph Nye (NYT, 09.25.2001).

Imagining, anticipating. I suggested the other day that in protecting and defending ourselves against possible further acts of terrorism, we should employ one of the techniques used in big cases by good trial lawyers, who typically assign a member of the firm to play the role of the opposition, to think like the opposition, to come up with as many possible opposition strategies and arguments as possible. Our leaders either haven't been doing enough of this or haven't been listening to those who have been doing it. The targets attacked on 09.11.2001 rather obviously were buildings that were/are symbols of the American economy and military. There is reason to believe that the target of the fourth plane was the Capitol. Now we are reading a) that the FBI has warned Hollywood's major film studios that one or more of them may be the target of a terrorist attack (click here), and b) that the Attorney General has warned Boston to be on especially high alert this weekend (click here). American movies are products and symbols of American creative freedom that are exported around the world. The Boston area is the intellectual hub of America with upwards of 40 colleges and universities. Fanatical terrorists don't like our freedom, and it's clear their targets are and will continue to be symbols of that freedom. Use your imagination and you can probably identify possible, even likely, domestic targets -- all across America. Many of them have been targets before. (For example, during the Cold War era the state capitol complex in St. Paul, MN, in which I worked for 28+ years, was widely believed, for obvious reasons, to be one of the most-likely Minnesota targets of a Soviet missile in the event of an all-out nuclear war.) Jefferson long ago said that the price we have to pay for our liberty is "eternal vigilance." It is still true, and being "vigilant" is a creative ongoing activity. (09.22.2001)

BurtLaw Daily Poem. Buttons, a "war poem" from Chicago Poems (1916) by Carl Sandburg ((1878–1967). For more poetry (on other subjects), click here and here.

BurtLaw Daily Quote. "I long have said there is no such thing as a hard case. I am frightened weekly but always when you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath." Justice Holmes to Lord Pollock, December 11, 1909. More quotes: here and here.

BurtLaw Featured Sites. Kids' Corner features links to sites and stories that will help you "help your children deal with anger and fear in the face of violence." American Psychological Association features a helpful list of typical reactions of children in various age groups, followed by useful guidelines for teachers (and parents) in responding. Civics Online "is a collaborative, online project providing a rich array of primary sources, professional development tools, and interactive activities to help in the teaching of civics." See, especially, 10 kinds of things you can do with your kids to help them learn to be good citizens. Earlier featured sites.

The war on terrorism. As I stated earlier, I am posting current original material relating to the events of 09.11.2001 and thereafter on this page. Earliest entries may be found here, and more recent ones here.

Is "bringing order out of disorder" a "female function"? P.D. James, the author of detective stories, thinks so: "Women, she says [to George Will], have an eye for details and hence for clues, are more interested in motive than violence, and are gifted with psychological subtlety and the exploration of moral choice." (Washington Post via Overlawyered). Does that suggest, at the very least, that men and women who are able to get in touch with their feminine sides make better common-law judges? Better poets? There is no doubt that one of the seemingly common attributes of great poets is the ability to see connections among seemingly unrelated things, to think divergently and convergently equally well, to create, as Robert Frost puts it, "a momentary stay against confusion" in the form of a poem. I suppose good judges, especially at the appellate level -- the profession's writers -- are good partly because they occasionally exhibit this poetic ability to see the connection of a seemingly unrelated case, perhaps in another area of the law, with "the current case," the ability to think metaphorically, the willingness to "let go" (if only in an anal-retentive judicial way) during the creative phase of deciding-writing. But is this ability -- are these abilities -- feminine? If so, how explain that many female judges don't display any poetry in their work-product? Perhaps, or so one might speculate for argument's sake, it is because they find themselves in what they (wrongly?) perceive as a heretofore male profession and are trying just a tad too hard to be hard and stereotypically masculine. (09.10.2001)

Alistair Cooke. "I doubt there has ever been a conference called by the United Nations that was so well-meaning in intention as the one in Durban but also so ill-considered, so doomed in prospect, a conference more dominated, if not paralysed, by hate-mongering delegates and loony outdoor bigots whom the conference was supposed to pacify or reform...." Another excellent "Letter from America" by Alistair Cooke to the folks back in England, this one on the fiasco in Durban. [more] Update: Opinion piece by another commentator arguing that there ia a "Durban connection" to the events of 09.11.2001 (WorldNetDaily).

Unlicensed, uninsured motorists - 17 million of 'em. Robert Miniter has an Op/Ed piece dated 09.10.2001 in the Wall Street Journal's Opinion Journal making a plausible argument that illegal aliens -- of whom there are an estimated six to nine million -- should be allowed to obtain driver's licenses. He notes, although it is not the point of his piece, that there are an estimated 17 million unlicensed drivers, a very high per cent of whom are illegal aliens and presumably almost all of whom are uninsured. One in five fatal accidents involves an unlicensed (and therefore uninsured) driver. "As a result," says Miniter, "auto insurance rates for law-abiding Americans are artificially higher. Insurance companies have learned the hard way that unlicensed, uninsured drivers rarely pay up -- so you do." While Miniter at that point moves on to other matters to support his main argument, I would like to stop at that point and remind everyone that there is a sensible solution to the problem of high insurance rates we all pay because there are so many uninsured motorists. It's called pay-at-the-pump auto insurance. Many insurance companies, oil companies and personal injury lawyers apparently don't like the idea, as the popular consumer finance writer Andrew Tobias found out in promoting his version of the plan in California. But it is an idea that I think merits careful consideration by lawmakers. Since everyone has to buy gas to drive, motorists who now drive without insurance could not escape paying. Moreover, they, like everyone else, would pay according to their use of fuel. Therefore, an additional benefit of the plan, among several, is that it would encourage use of fuel efficient vehicles. The idea is explained here in detail. (09.10.2001)

Fred. I logged a lot of hours watching Mr. Rogers' Neighborhood with my kids when they were little. Fred and his friends (real and make-believe) provided calm and balance to Sesame Street and Electric Company, both good shows we also watched. I've said it before: Fred Rogers -- who is an ordained minister, accomplished musician, gifted teacher and just-plain decent man -- is one of the greatest forces for good in America. Kathleen Parker, writing in Jewish World Review (click here), appreciates Fred as much as I do. I wish more people in TVLand and in Hollywood had the same sense of social responsibility that Fred has. When I was a kid, more entertainers did. When Gene Autry (1907-1998), a singing radio and movie "cowboy" star, was arrested for DWI, he "apologized to the youth of America." How things have changed. Now we read reports of producers of network TV shows "promising" to push the boundaries of what is acceptable to network censors. Translate: more swear words, more nudity, more sex. All the more one appreciates Fred. (09.06.2001) More...

BurtLaw Featured Essay(s): "[W]e talk about art -- and write about art -- so poorly. If you eliminated all the easy, lazy superlatives -- beautiful, wonderful, powerful, amazing, incredible -- from use in any context relating to art, the silence would be deafening. People would stare at each other and stammer and gesticulate, and feel utterly at a loss to describe what they just experienced. This is all the more a problem when the art form, such as music or dance, has no verbal element. In the face of silence, we always have clichés, comfortable, ready at hand, and so meaningless as to be infinitely adaptable...." Herewith, an essay by Philip Kennicott, Maybe It's Your Platitude, that lists the top 50 clichés about art, including the ever-popular "Art is a universal language," "Art captures the eternal human spirit," "Art brings us closer to our fellow man," "Art makes us better people," and "Art is timeless." Also of interest: movie clichés - cliché finder - sports clichés - political clichés.

Bozzy & Dr. J. My friend, Justice John E. Simonett, introduced me to James Boswell's Life of Johnson. It's a terrific book. I find it interesting that few people these days read anything that Johnson himself wrote. I tried and didn't find it worth the effort. But Johnson the person remains interesting, primarily because of Boswell's portrait of him. Boswell was a lawyer and kept a detailed journal throughout his life. The discovery of those journals was one of the major literary events of the 20th century. I've read a couple of volumes of them. I'm looking forward to reading more of them. There's also a new biography of Boswell, reviewed here, that looks worth reading. More...

When "governments" (including courts) buy computers. In his weekly radio address on 08.25.2001, Pres. Bush announced that OMB (Office of Management and Budget) was "releasing a report identifying 14 long-neglected management problems in the federal government...." As an example, he said that "the United States government is the world's single largest purchaser of computers and other technologies for gathering and using information. In 2002, we will spend $45 billion on information technology. That's more than we've budgeted for highways and roads. Yet so far, and unlike private sector companies, this large investment has not cut the government's cost or improved people's lives in any way we can measure." I am encouraged by this sort of talk, and I hope the President follows through on it. In 2000, when I was a candidate for judicial office, I publicly addressed this same basic issue.... [more] (08.26.2001)

Cheerleading competitions and the "rule of law." When word got out that the faculty sponsor of the cheerleading squad at Brazoswood High School in Brazoswood, TX had told the supposedly impartial judges which girls she wanted them to select, parents of rejected girls threatened legal action. What to do to right this wrong? More...

The perils of ignoring our boys. Last week the novelist, Doris Lessing, delivered a "give 'em hell" speech that attacked the vitriolic, hot-air brand of feminists who seem to think something is gained by dissing men in general. She warned about the effects of this nonsense on the psyches of both men and boys, as well as the effects on society. [more] Richard Morrison, writing in The Times of London, does a good job of expanding on Lessing's comments. He says, in part: "Preoccupied with the task of creating a 'level playing-field' for girls, we have fatally ignored the problem boys. And 'fatal' is not too dramatic a word in this context. In the 15-to-24 age group, males are five times more likely to attempt suicide than females, four times more likely to be addicted to drugs or alcohol, and nine times more likely to be sleeping rough on the streets. If they also happen to be black, badly educated and from poor homes, the scales of life are weighed even more cruelly against them." It seems to me that the situation in the UK parallels that in our country in many ways. At one point Morrison says, "It’s as if the very qualities that differentiate boys from girls are being suppressed by offical diktat." Doesn't that ring a bell? [more] For some of my views, click here, here, and here. (08.21.2001)

Court Gazing: a) Reverend Judge Jimmy Myers, a bachelor, files criminal complaint in NC against adulterous couple. b) But Alabama Court of Civil Appeals overturns a trial judge who believes if a man has an affair with his boss' wife, he can't sue the boss in tort if the boss beats him up on learning of the affair. c) When judges misuse doctrine to deflect criticism.... d) About Iran's super-independent judiciary.... e) China tries to create an independent judiciary.... f) Japan struggles with judges who turn trials into trials.... g) Why the ABA's Standing Committee on the Federal Judiciary is controversial.... More and more....

Chivalrous lawyers win coupons for consumers, cash for themselves. I'm not one to question the motives of any of the lawyers who prosecute class action law suits to benefit consumers, etc. I'm willing to concede that most, maybe all, of them are indeed chivalrous soldiers in a civil crusade for justice for ordinary folks who've been wronged (and may not even know it). But I'm always irked when the settlement they negotiate on my behalf entitles me to coupons I'll never use and them to cash to.... More....

Slopping out may be on the way out. Nelson Mandela, who knows of what he speaks, has said that "no one truly knows a nation until one has been inside its jails." Article 3 of the European Convention on Human Rights, which went into effect in 1999, provides that no one should be subject to inhuman and degrading conditions. One such practice that, surprisingly to me, still exists in prisons and jails in certain European countries is the practice known as "slopping out." More....

Those nice guys you meet in church. During my years as a research attorney at the Minnesota Supreme Court I worked on a number of appeals in sexual abuse cases in which it came out that the convicted defendant's modus operandi was to meet the women and/or children he victimized at social gatherings of single parents. Nick Hornby, author of High Fidelity and How to Be Good, also wrote a novel titled About a Boy, reviewed here, in which a relatively benign fellow perfects the "single-mom scam" to "market" himself as a sensitive guy to (and thereby "score" with) attractive gullible single mothers. Here's a link to a real-life story about a less-than-benign Maine guy convicted of sexual assault who has used churches throughout the state to meet the women and young girls he has assaulted. It's sad to say but believers, like buyers, must beware.

Our voyeuristic society. At times, especially in the winter when I need a cinematic escape from the cold weather of Mpls, I say it's my favorite movie -- Alfred Hitchcock's Rear Window (1954). It's a literally-hot movie that's about romance and love and suspense --

and a lot of other things, including voyeurism. James Stewart plays an aging commitment-phobic globe-trotting playboy photo-journalist who finds himself in the middle of a heat wave confined to his apartment recuperating from a broken leg. With no t.v. to watch (it's 1954) and nothing much to do except play the grouch during daily visits by his nurse (Thelma Ritter) and his high-society high-fashion girl friend (Grace Kelly at her absolute loveliest), he becomes a voyeur, watching the.... [more] (08.09.2001)

Is our criminal justice system "criminally unjust"? Wendy Kaiminer, writing in the Sept. 2001 issue of The American Prospect, argues it is: "When people start identifying with the victims of law enforcement, they stop accepting its systematic abuses. Laws against medicinal marijuana are vulnerable because their targets include respectable citizens....Imagine the political consequences of subjecting affluent whites to the same degree of police surveillance and abuse that poor blacks and Latinos endure. The war on drugs is a war on minorities, partly because police pay relatively little attention to drug-law violations by whites." [more] Also worth reading: "Hard-Time Kids" by Sasha Abramsky, who argues: "We are a country reeling under a changing definition of childhood, shifting views about redemption and rehabilitative potential, and an increasingly pre-Enlightenment notion of punishment as an emotional catharsis for victims and an automatic response to violations of the moral code." [more] For some of my views on the issues discussed in these pieces, click here and here. (08.10.2001)

Bill of Rights Golf - The Game. Professor Doug Linder, University of Missouri-Kansas City Law School, has devised an online computer game that you can play right now. It tests your knowledge of hornbook Constitutional Law, the kind law students learn and lawyers tend to forget. It's called Bill of Rights Golf. At the end of your round, drop by the James Madison Clubhouse and quaff a beer or two.

The "imperious" judge with "gray hair coifed in a formidable pompadour": oral argument as entertainment. "Quality entertainment in D.C. isn’t limited to congressional committee rooms, the House and Senate floors, think tank auditoriums, and black tie dinners....If you find yourself in D.C., check the...Web site [of the U.S. Circuit Court of Appeals for the D.C. Circuit]....If [Judge David] Sentelle

is [on a panel] slated to hear a case, pop into [the] courtroom for an hour; he’s far more entertaining than the IMAX nature film at the National Museum of Natural History...." From "Bleeping on the Job," an entertaining piece of legal reporting by Michael J. Lynch in Reason on oral arguments in an appeal by management of an NLRB decision that management's prohibition on verbal assault constituted an unfair labor practice in the context of a unionization drive even though the prohibition wasn't used against union organizers. [more]

In Norway it's fun to be robbed. Click here to find out why.

Best decision? In my opinion, the decision in this case, written by the redoubtable Justice Rosalie E. Wahl, is far and away the most objectively beneficial criminal law decision of the Minnesota Supreme Court in the last 30 years. [more]

News anchor loses bikini battle in high court. Anna Ford is a British Lesley Stahl, a woman my age who has been reading news for the BBC for many years. Last summer she took a vacation in Majorca with her then partner, David Scott, and her kids. A member of the paparazzi, using a telephoto lens on his camera, took pics of her wearing a bikini on a somewhat secluded section of a public beach. In the pics, later published in a British daily tabloid and a magazine, Scott and Ford were shown.... [more]

Who does this woman think she is? According to USA Today [more], Fla. Sec. of State Katherine Harris spent $3.4 million last year on foreign travel. "Harris visited eight countries on 10 foreign trips, staying at luxury hotels at taxpayer expense....Her travels have included trips to Argentina, Australia, Brazil, Venezuela, Canada, Panama, Mexico and Barbados." Recently, it's been rumored she wants to run for Congress. A special review committee has been appointed by the legislature to review these expenditures. I've been advocating, for some time, that all travel and entertainment expense reimbursement requests by all public officials in Minnesota, including each judge, be filed and archived on the WWW. The knowledge by each official that his or her travel and entertainment at public expense will be publicly scrutinized presumably will have a healthy prophylactic effect, causing each official to think twice about the ordinary and necessary nature of each such expenditure. [more] (08.01.2001)

"Counselor, would you repeat your objection -- I was thinking about my hair." USA Today reports on the results of a survey about what's on the minds of women. According to the survey, "women" -- and presumably this includes female judges and lawyers and legal secretaries -- spend an average of 43 minutes a day thinking about.... [more]

Law and Dogs. Pat Murphy, 50, a Boulder, CO plant ecologist, wants the dog-waste-pickup laws enforced. He's gone about it in a methodical, even scientific way. On one day in March he used a GPD (global positioning device) to locate precisely each of 661 piles of dog doo at a

middle school yard in Boulder, then.... [more]

Why is Dr. Bindeshwar Pathak smiling? Click here.

Should we spend more taxpayers' money on consultants from the National Center for State Courts? [more]

Is a water balloon a dangerous weapon? A Canadian boy who tossed a water balloon at friends and accidentally hit a teacher has been charged with assault with a weapon. [more] I tossed my share in my day. One Kids Day, as everyone was waiting for the parade to start, I lobbed one at a friend across the street but it accidentally hit the pavement in front of a woman seated on the curb. Splash!! No one charged me for that or any of a number of other "delinquent" acts. But folks were more tolerant then. They knew that to be juvenile was to be, in a sense, "delinquent." Today, it seems, a bunch of intolerant idiots are in charge, folks who have declared war on kids, particularly boys. [more]

Online grocer fails where Chuck's Grocery succeeded. "Webvan, the online grocer that epitomized the buoyant optimism that the Internet could revolutionize even the most entrenched industries, closed yesterday and said it would seek bankruptcy protection." The story in NYT for 07.10.01 adds that "After spending almost all of the $1.2 billion put up by investors, including some of the savviest in Silicon Valley, Webvan ran out of money long before it could hope to turn a profit." Amazing. When I was a kid growing up in a small Minnesota town on the eastern edge of the Great American Prairie, there was a "business model" for home delivery of groceries, at no extra charge, that didn't require the use of a computer.... [more]

Legal writing, legal secretaries. There was an interesting article in the NYT the other day [click here] on the silly battle that opposing camps of appellate judges are waging about the "right" way to write an opinion deciding an appeal. Purists or traditionalists favor the approach of generally citing prior decisions in the main body of the opinion, not in footnotes. In recent years that approach has been challenged by devotees of a legal-writing guru, Bryan Garner, who writes books (too many, I think) and gives MCLE seminars on how to write legal prose... I have been amused in recent years by all the judges and lawyers (usually not very good writers) who run around not only trumpeting Mr. Garner's books and seminars but trying to coerce other judges and lawyers (some of whom are good writers) to read the books and attend the seminars.... [more]

Raising teens: what the researchers agree on. The folks at the Center for Health Communication at the Harvard School of Public Health have released a 101-page report titled Raising Teens: A Synthesis of Research and a Foundation for Action. The report "pull[s] together current research on the parenting of adolescents and distill[s] from it key messages for the media, policy makers, practitioners, and parents." The Report puts "particular emphasis on identifying those conclusions about the parenting of adolescents about which there is widespread agreement among researchers and practitioners." It identifies "Five Basics of Parenting Adolescents, with a list of strategies for each." and lists "Ten Tasks of Adolescence...delineat[ing] the main aspects of adolescent development that parents and other adults need to be aware of and support." You can download it or order "one" free copy here. More and more

Dick Nixon, America's greatest bowling president. ...Truman had a bowling alley installed in the White House, but Ike, an obsessive-compulsive golfer, tore it out. Dick righted that wrong, as he did so many others, by having another one installed. Undoubtedly, nobody ever bowled wearing a necktie (or walked on a beach in a suit) better than Dick. And

no one ever bowled so many games in a row: legend has it that he once bowled 20 games in a row (!), all by himself, with the loyal White House staffer who managed the alley keeping his score and keeping him company. [more] Who knows how many crises (six? maybe more) Dick solved while bowling by himself. And who can blame him for scratching occasionally (see foot on the line in photo right), given that he was balancing the weight of the Free World on his shoulders as he released the ball.... [more]

Thoughts on racial profiling and "'consent' searches." It is curious, and I think telling, how easy it is for police to spot and stop and search black drivers [click here and here] when it is so difficult for taxi drivers to spot and stop for black passengers [click here]. New Jersey is considering barring its law enforcement officers from conducting so-called consent searches of motorists during routine traffic stops. See, e.g., this news report and this one. Justice Esther M. Tomljonovich of the Minnesota Supreme Court, in her prescient concurring opinion in a 1997 case, State v. George., broached the possibility of "reject[ing] the concept of consent to search in the context of routine traffic stops and so-called voluntary street encounters." I have come to the conclusion that Governor Ventura and the Minnesota Legislature ought to do just that, prohibit state and local law enforcement officers from conducting consent searches in these contexts. The virtue of this proposal is that, at minimal cost and without the need for more "studies," it would eliminate the incentive of officers to stop motorists, regardless of race, on flimsy grounds in the hope of obtaining "consent" to search. Such a policy would go a long way toward eliminating stops based on racial- and other impermissible types of profiling. Police want us to believe we can trust them to eliminate bias as a factor in stopping motorists. Maybe so. But the routine asking for "consent" to search from stopped motorists of any race is a separate, independent insult to free citizens of a free country. Updates: a) G. Callahan & W. Anderson, The Roots of Racial Profiling, Reason Magazine, Aug-Sept 2001. b) James Forman, Jr., The Conservative Case Against Racial Profiling, The New Republic, 09.10.2001 issue, on how profiling hurts kids.

"When 'flashy' Jews ruled the hardwood court." In the 1920's, '30's & '40's Jewish players dominated inner-city basketball. And sportswriters then used stereotyping in describing the

dominance of these players. Paul Gallico, a sportswriter, wrote, "The reason, I suspect, that basketball appeals to the Hebrew, with his Oriental background, is that the game places a premium on an alert, scheming mind, flashy trickiness, artful dodging and general smart-aleckness." When the premier Jewish team, the South Philadelphia Hebrew Association team played the New York Renaissance, the premier Negro team, it was said that SPHA was a "thinking" team and the Renaissance was a "quick" team, "stereotypes about Jews and blacks that endure today." For more of this fascinating and timely article about the persistence of stereotypical thinking in sports, from The Black World Today, click here. For a similar but less-detailed story by same author in JWR, click here.

"What does the Herfindahl-Hirschman index measure?" That's the first of 71 questions on the last version of the infamous trivia quiz U.S. Circuit Court Judge Danny Boggs gives his law clerk applicants. I know the answer to the first question because the "Herfindahl" in the HHI is my late mom's late cousin, Orris Herfindahl, who died trekking in Nepal. Click here for the latest story about Judge Boggs & his clerks, three of whom have appeared on Who Wants to be a Millionaire, click here for the quiz, and click here for the answers.

Funny-papers lawyer. Ruben Bolling started drawing his Tom the Dancing Bug comic strip for the student newsweekly, The Harvard Law Record, while he was a student at Harvard Law, from which he graduated in 1987. The strip, which blends social and political commentary, now appears in syndication in many newspapers. Bolling also draws "Tom" cartoons for The New Yorker, Salon, and the "Week in Review" section of the New York Times.

Calvin & Hobbes. Ever wonder what happened to those guys? Click here.

"Imagination and Insurance." "From 1918 to 1941, the main office of the Hartford Insurance Company on Asylum Avenue in Hartford, Connecticut, 'a solemn affair of granite, with a portico resting on five of the grimmest possible columns,' housed two most unusual employees. Upstairs in a big corner office, a Harvard graduate bond-surety lawyer, who became (in 1934) a vice-president of the company, and, on the side, wrote poetry. Downstairs, in the fire insurance division, a fire prevention specialist, an engineering graduate of the Massachusetts Institute of Technology, who on the side practiced linguistics...." [more] For more poetry, click here, here, and here.

The other Oliver Wendell Holmes. Dr. Oliver Wendell Holmes, contemporary and friend of Emerson, was more famous in his time than his illustrious son, the judge. He was the guy who discovered the cause of and the way to prevent puerperal fever, saving the lives of many mothers and babies. He taught generations of doctors at Harvard Medical School, and, as author of The Autocrat of the Breakfast Table and other books, was the toast of the English-speaking literary world. I have a copy of his Pages from an Old Volume of Life, a collection of delightful essays, in one of which he says, "We can hardly doubt that the condition of the primitive man was to bask in unimpeded sunshine, and that in depriving himself of it to so great an extent he must pay the price in the form of some physical deterioration. Men and women must have sunshine ripen them as much as apples and peaches...." [more] Failure to heed Holmes' advice is one of the reasons underlying the recently-detected resurgence of rickets in children. And, researchers are now "proving" what Holmes knew, and told us, long ago about the relationship between physical and mental health and the environment. See, e.g., this report on the research of Emory University Professor Howard Frumkin, and this fascinating piece by Rebecca Clay on "The Greening of Psychology" from the American Psychological Association's latest issue of Monitor on Psychology.

Fathers and kids. I occasionally "do a Google" on familiar names. Among the things I found doing one on my law-student daughter's name the other day was this piece in a University of Colorado alumni publication by William C. Marolt, CEO/President, U.S. Olympic Ski Team, Park City, Utah, recommending three books to kids about to go to college and their parents: "1.Letting Go: A Parents' Guide to Understanding the College Years by Karen Levin Coburn and Madge Lawrence Treeger, 2. The Real Freshman Handbook: An Irreverent & Totally Honest Guide to Life on Campus by Jennifer Hanson, 3. 101 Things a College Girl Should Know, from a Big Sister Who's Been There by Stephanie Edwards." J.HA's book has done well enough that the publisher, Houghton-Mifflin & Co. of Boston, is planning a revised, updated second edition. More...

Female boss means softer workplace? It was reported recently that women are close to being in the majority among students in American law schools. Some have suggested that more women in the profession will mean the practice of law will be less adversarial. This may happen. Then again it may not. I do know that appointing a woman as boss won't necessarily make a workplace better or more humane. One female lawyer I know who has worked in a number of different settings told me once that not one of the women she'd worked under had been a good manager. A feminist, she referred to one of them as "that bitch." I've had lots of bosses. Best boss I ever had was a woman. Then again, worst boss I ever had was a woman. More...

Law and Norwegians: All of my ancestors were Norwegian -- including the Harveys, who were from the place depicted at right, Horvei (Americanized to Harvey), Evanger, Voss, Norway. The photo was taken at my request in the summer of 1999 as a courtesy by a generous Vossinger named Svein Ulvand, who maintains a truly wonderful website devoted to Voss, on which he posts a new picture every day. [more] One of my Vossinger great-grandmother Ragnhilda Harvey Herfindahl's grandchildren was Orris Herfindahl, who died, too young, while trekking in Nepal. Circa 1960 he wrote the essay, "What is Conservation," which has been called a "classic" in the field of environmental philosophy and resource management. [more] The so-called "Herfindahl Index," used by the trustbusters in the U.S. Dept. of Justice, is named after him. [more] For more on "Law and Norwegians," click here.

Law and writing. "Alot" or "a lot"? Paul Brians maintains a site explaining common errors in English usage. You wouldn't write "alittle" and you shouldn't write "alot." There's a lot of useful information here, for judges, lawyers, secretaries, and others who want to be "correct." [more] For more on legal writing, click here.

Click on "kiss" (left) for a collection of poems about "luv."

Click here and here for picks of the most romantic movies of all time, a few of which have lawyers and judges, those poor, unromantic souls, as characters.

Click here for some stuff about law and love.

Games people play...at work. In one monthly study WWW.Pogo.Com, which features scores of online games, led the Nielsen list of "stickiest" web sites visited by people using their work computers. Its audience size? Over 1,750,000 people. Average time spent on site per person? Slightly over two hours. E-Bay wasn't as "sticky" among workers (average time per person: 1:57 hours), but its audience was over 7,500,000 people. One wonders how many visitors to these sites were lawyers. One wonders if any clients got billed for those hours. :-) a) Slapping judges. A large number of disappointed Democrats apparently have visited this site, which I don't endorse, to play a game that I admit having played, a game that involves trying to help Al Gore become President by "slapping" those U. S. Supreme Court Justices whose "votes" ultimately had the effect of awarding the election to Geo. W. Bush. b) Tossing Cows. I understand from the feedback I've gotten that a number of people who regularly visit BurtLawEtc. have become addicted to the ancient and honorable Norwegian sport of cow tossing. As I've emphasized, you may participate without fear of prosecution for violating any cruelty-to-animal statutes or ordinances because the cows you fling are far away in Norway, and Norway doesn't have jurisdiction over you! You need not be a Norwegian or "a rube" to participate. If you score higher than 450 (out of 500), you beat me. If you're good, the best time to play is Sunday, when the previous week's highest scores are erased from the scoreboard. My 450 was up there briefly a few weeks ago. I was "in the zone" when I attained that score. If you do poorly, well, you may be asked, as my daughter was, whether you're Swedish. [click here] c) Hangman. When I was a kid, we played games using a blackboard or a scrap of paper, games like Battleship...and this one, Hangman. Now you can play it on the boss' dime on your office computer. Click here.