Casanova tells all (about appellate persuasion).

One of the most understated blawgs around is this gem from the Old Dominion. Although his primary focus is Virginia and the Fourth Circuit, Steve has posted a number of "essays" on his site, many of which should be of interest to appellate practitioners anywhere. Some of my favorites take the form of "interviews" about the finer points of successful appellate advocacy with the likes of Sun Tzu on the Art of (Appellate) War, Ernest Hemingway on legal writing and Cicero on oral argument.

Steve has another of what the media types call a "great get" with his interview of Casanova on appellate persuasion. His celebrity guest makes some valid observations in an interesting way but let me reinforce the point that facts and law will always work a lot better than flattery and whispering sweet nothings (at least with me). But then again, George Clooney has never argued a case in front of me.

This gives a whole new meaning to "Heavy Metal" music.

No, she is not wearing an aluminum tutu. She is playing a musical instrument called hipDisk. The self-proclaimed "most undignified musical instrument ever" goes about its noise making ways by utilizing soft switches on the two discs, which "create a variety of chimes based on one's movements." The design is supposed to "accentuate the interdependent relationship of the hip and torso" and to enable "a small orchestra of hipDisked women to play chord structures together."

I don't get the bathing suit and cap but I think she is cranking out "The Ride of the Valkyries instead of Swan Lake."

Trial judge will only do his job if the parties agree not to let appellate judges do theirs.

In his latest column on Law.com, Howard Bashman discusses a case he is involved with where the trial judge only agreed to decide the merits of the case if the parties would agree not to appeal his ruling.

I hope this doesn't catch on or I will find myself working as a greeter at Wal-Mart.

Via How Appealing.

I'm no marketing genius but ... (Part III)

... is there really a market for stuff like:


The Chia Pet-like "lawn" chair you have to mow.

Via Geekologie.








How about cereal straws? Little tubes of Froot Loops (TM) cereal that are lined with powdered milk? Yuck!

Via The Impulsive Buy.


Or you could be the first on your block to own a "Magic Wheel" which comes from our British cousins and appears to consist of one big wheel and one small wheel. It operates through the rider planting one foot on the Wheel's platform while pushing with their opposite leg (see the embedded video for a demonstration). The idea is best described as unicycle meets skateboard, or in my case, aging body meets ground meets emergency room.





"Handsoap" shaped like babies hands just seems wrong to me on several levels.

Via 7 Gadgets.

British judges dressing down.

Lower court judges in England and Wales are apparently poised to join their Scottish colleagues and give up their expensive wigs and robes - at least in civil cases.

The judicial robe and barrister's gown dates from the reign of Edward III (1327-77) and by the 17th century, the fur and silk-lined robes were well established as a mark of high judicial office. Judicial costume changed with the seasons, generally green in the summer and violet in the winter, with red reserved for special occasions (See below). The plain black gown was adopted by most barristers in 1685 when the bar went into mourning at the death of King Charles II. They have apparently never gotten over it.

Use of a wig as part of judicial attire dates from about 1660, the time of the restoration of the English monarchy after the civil war. Upon the return of Charles II from France, the fashion of the Court of Louis XIV for powdered wigs became de rigeur for those who wanted to show their rejection of the old regime of Oliver Cromwell and his short-haired "Roundheads".

Thomas Jefferson, said that English judges looked to him "like mice peeping out of oakum" and urged American judges to abandon the traditional wigs and robes while fellow lawyer and founding father, John Adams, urged them to maintain the traditional dress. Most American judges compromised by dropping the uncomfortable wigs and adopting the less ostentatious, plain black "barrister's robe."

Apparently all the different wigs and robes English judges wear in various types of cases and seasons cost around $20,000 so the decision is largely an economic one although the regalia will still be worn in criminal cases and by High Court judges. Presumably, those still wearing traditional judicial garb will continue to follow the "Court Dress Consultation Paper issued on behalf of the Lord Chancellor and the Lord Chief Justice" (August 1992):

When sitting in the Court of Appeal (Criminal Division), High Court judges, like other members of the Court of Appeal, wear a black silk gown and a short wig, as they do in Divisional Court. When dealing with criminal business at first instance in the winter, a High Court judge wears the scarlet robe of the ceremonial dress but without the scarlet cloth and fur mantle. When dealing with criminal business in the summer, the judge wears a similar scarlet robe, but with silk rather than fur facings. A Queen's Bench judge trying civil cases in winter wears a black robe faced with fur, a black scarf and girdle and a scarlet tippet; in summer, a violet robe faced with silk, with the black scarf and girdle and scarlet tippet. On red letter days (which include the Sovereign's birthday and certain saint's days) all judges wear the scarlet robe for the appropriate season.

Did you get all that? There will be a quiz later. Oh, before you ask, I have absolutely no idea what a "tippet" is but it sounds to me like American judges made the right decision.

Hat tip to How Appealing.

Chief Justice Roberts' secret to successful appellate advocacy.

Tony Mauro has an interesting column up at Law.com in which he looks at statistics from recent terms of the Supreme Court and analyzes the number of questions from each justice against the their ultimate decision in each case. His purpose was to test an observation made by Chief Justice John Robert's that as a practitioner, "The secret to successful advocacy is simply to get the Court to ask your opponent more questions." In other words, the lawyer who is asked the most questions in oral argument is the lawyer most likely to lose.

Mauro's analysis seems to bear out the Chief's theory and when I thought about it, I realized that my own experience confirmed the theory as well and after pondering it for a bit, I think I know why that is.

I won't presume to speak for other judges or courts but, in my case, I take the briefs to the bench annotated with my notes reflecting points I want to clarify from the briefs about the issue or the position of the parties in each case. Upon reflection, I generally have fewer questions for the attorney who made their legal position crystal clear in their brief and where they cite precedent that supports their position. By contrast, I tend to ask more questions to clarify the argument where the existing precedent did not seem to support their position (e.g. "Why doesn't Smith v. Jones control the outcome of this case?") or to clarify the legal position of a lawyer whose brief confused me (e.g. "Let me make sure I understand counsel, is it really your position that the First Amendment protects human sacrifice?"). Put another way, I suppose the lawyers who tend to get the questions are those who are either the lawyers who are pushing the legal envelope on behalf of their clients (a good thing) or those who were less than clear in presenting their client's case (a bad thing). That doesn't mean that these lawyers never win, on the contrary, they sometimes do. It's just that, overall, they are on the wrong side of the law of averages.

Mauro ends his piece with a conclusion from Professor Lawrence Wrightsman, a psychology professor at the University of Kansas, that Chief Justice Roberts (and presumably his colleagues on the court) comes to oral argument with a "predisposition" asserting "I don't want to say he has already decided the case, but he is setting a higher standard for one side than for the other."

The Chief Justice hardly needs me to defend him but that quote illustrates why psychology professors probably shouldn't write books about courts and judging. As I have said before, whether you want to call it a predisposition (I wouldn't call it that) or a preliminary conclusion, every appellate judge I know of is usually leaning one way or the other after reading the briefs, record and the applicable law. But forming a tentative conclusion is not the same as pre-deciding the case, setting a higher standard for one side or that our ultimate vote is "carved in stone." I and other judges keep an open mind and we refine our conclusions and often change our mind completely about the case after we get our questions answered at oral argument and nothing is ever final until we bat it all around with our colleagues in the decision conference and positions can and do change right up to when we ultimately sign the opinion.

Maybe Norm Crosby has a point.

1970's comedian Norm Crosby famously said that "When you go into court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty."

I found confirmation of this observation in these two separate news items:

It seems that in Massachusetts, at least one juror failed to get out of jury service despite branding himself a homophobic, racist, congenital liar. Maybe he should have served on this Massachusetts jury.

And across the pond, a Muslim juror in a London murder trial was caught listening to her MP3 player under her headscarf instead of the testimony of the witnesses. She had already managed to get out of jury service on two prior occasions and although she tried to be excused a third time, the court wasn't having any of it. After a fellow juror reported her, she was excused from the jury and the defendant, Alan Wicks, was convicted of murdering his wife by the remaining 11 jurors.

Apparently, British courts take a harsher view of this kind of juror misconduct than their counterparts in America because the article quotes a barrister who indicates that the average sentence for juror misconduct is three years in prison. Because this kind of thing makes a mockery of the entire jury system, I tend to agree with the British approach.

Hat tip to Above the Law.

Licensed to be stupid but apparently not to practice law.

Natasha Riley, not pleased with the way things were going for her client, told a judge in the Brooklyn Family Court during a custody proceeding, "This is bullshit". Unfortunately for her, the judge would have the last word. Because most lawyers aren't dumb enough to address a judge that way [they know that truth is no defense to contempt], the judge became suspicious. He checked her out and it turns out that Ms. Riley, who had at least 8 clients, and 4 court appearances, is not a lawyer! Another judge, Justice Guy Mangano, Jr. put her on 5 years probation and ordered her to make restitution to her clients for the fees she charged.

OK. I didn't edit the expletive like the Daily Eagle did but what do you expect from a blog with a PG rating.

Practice tip: In closing argument avoid threatening to kill the jurors and their families.

Fresh from a trial in which he sucker punched an elderly juror, Boston's baddest boy, Richard Glawson, addressed the jury considering his fate on another set of charges and, innovative trial tactician that he is, he started his closing argument as follows: "Ladies and gentlemen of the jury, I'll kill all of you" and concluded this pithy argument with "That goes for your family, too."

Alas, this innovative approach failed and the jury convicted him. He was sentenced to 45 years by a judge he apparently forgot to threaten to kill. If Glawson is convicted by another jury on the juror-punching charge (are you keeping this all straight?), that sentence will start to run after the 45 years he got for his conviction by the jury he threatened to kill.

I wonder what those Northwestern professors think about this verdict?

231 years old and still going strong!

231 years ago, a committee of the Second Continental Congress, consisting of Thomas Jefferson, John Adams, Benjamin Franklin, Roger Sherman and Robert Livingston were appointed to draft a document declaring that the 13 original colonies were henceforth independent of the mother country. The committee selected Jefferson to draft it. It became one of civilization's great documents and serves as the birth certificate for a nation which created a unique form of government that endures more than two centuries later.

"Somewhere in our growing up we began to be aware of the meaning of days and with that awareness came the birth of patriotism. July Fourth is the birthday of our nation. I believed as a boy, and believe even more today, that it is the birthday of the greatest nation on earth... In recent years, however, I’ve come to think of that day as more than just the birthday of a nation. It also commemorates the only true philosophical revolution in all history. Oh, there have been revolutions before and since ours. But those revolutions simply exchanged one set of rules for another. Ours was a revolution that changed the very concept of government. Let the Fourth of July always be a reminder that here in this land, for the first time, it was decided that man is born with certain God-given rights; that government is only a convenience created and managed by the people, with no powers of its own except those voluntarily granted to it by the people. We sometimes forget that great truth, and we never should. Happy Fourth of July." — Ronald Reagan

"You have to love a nation that celebrates its independence every July 4, not with a parade of guns, tanks, and soldiers who file by the White House in a show of strength and muscle, but with family picnics where kids throw Frisbees, the potato salad gets iffy, and the flies die from happiness. You may think you have overeaten, but it is patriotism." - Erma Bombeck

"A man's country is not a certain area of land, of mountains, rivers, and woods, but it is a principle; and patriotism is loyalty to that principle." - George William Curtis

"How often we fail to realize our good fortune in living in a country where happiness is more than a lack of tragedy." - Paul Sweeney

"The United States is the only country with a known birthday." - James G. Blaine

Pennsylvania legislature finally allows on-line access to its laws.

The Luddites in the Pennsylvania legislature finally caved in to progress and allowed its citizens to have on-line access to that state's statutes.

Now ignorance of the law is no excuse in all 50 states (at least for anyone with web access).

Hat Tip to Concurring Opinions.

It seems that this blog is rated...

It wasn't the Motion Picture Association of America, video game publishers or the television industry that provided this rating. It was an on-line dating service called Mingle2.

According to them, the PG rating is based upon two uses of the word "dead" and a single use of the word "porn" in posts.

Oh well, I don't think I was in any danger of being confused with Walt Disney anyway.

Do juries really get it wrong 17% of the time?

According to professors of statistics and law at Northwestern University, juries return the wrong verdict in one case out of six. Patterico disagrees, as do I.

Do juries ever make mistakes? Of course they do. The system isn't perfect and the last time I checked, juries were still composed of flesh-and-blood, fallible human beings. However, whether a jury verdict is wrong is ordinarily a subjective conclusion, reached by someone who doesn't agree with the verdict, usually whoever lost the case. Even so, sometimes newly discovered evidence or the application of new technology to existing evidence (such as DNA) will demonstrate objectively that the jury was wrong in its verdict. In fact I note that Professor Heinz says "We know there are errors because someone confesses after the fact or there's DNA evidence...." But if the evidence was never presented to the jury in the first place because it either didn't exist or wasn't available at the time of the trial, is it fair to blame the jury for not getting it right? I don't think so.

When I was a young prosecutor, a far more seasoned defense attorney (now a federal judge) told me that in his experience, juries usually get it right, although often for the wrong reason and over a 30 year career in the law, I have often remarked on how right he was. The reality is that if a case actually goes to trial, that usually means that there are issues and/or facts that reasonable people can differ about.

Even when you subjectively are convinced that the jury reached the wrong verdict, it is usually unfair to blame the jurors. Their role in our adversarial system is a passive one and based upon my own experience as a trial lawyer and confirmed by the records in most of the thousands of cases I have reviewed on appeal, any problem with confidence in the verdict can usually be laid at the feet of one or more of the more active participants, the lawyers and/or the trial judge or even a witness who commits perjury. In turn, the lawyers involved in the case are human as well and they don't have to be incompetent or unprepared to have a case go south on them (although sometimes that is indeed the problem). An advocate may have simply made a tough strategic or tactical decision that at the time they thought was in their client's best interest but, with the benefit of 20/20 hindsight, was the difference between winning and losing.

Based upon this article, I agree with Patterico that this study is more headline than substance.

As the ad guys say, "Product placement is everything."

This theater manager either has a sense of humor or doesn't have a clue.

I'm no marketing genius but ... (Part II)

After my last sojourn into second guessing the demand (or lack thereof) for some of the products on the market today, I didn't expect to be doing it again so soon. Alas, I should have known better because, as I have noted previously in this space, David Hannum continues to be right. So here we go again:


First up we have this nice little miniature pistol/watch. Small enough to fit in any pocket and just the thing when you need to know the time in those airports, banks, convenience stores, schools and police stations.

Hat Tip to Nerd Approved.


Although not quite on the market yet, a Japanese company has developed a robotic Master of Ceremonies which will assist at the wedding of one of its designers. Unfortunately, the divorce will still require human beings.

From PhysOrg.com.



What home or office could possibly be complete without the Farting Gnome? The FG has a movement sensor and when someone gets close, it proceeds to crank one out at top volume and follows up with rude comments. If your narrow minded wife or girlfriend won't let you bring it home, just put it on your desk at the office where you can impress your boss and scare the night cleaning crew.



Finally, we have the wearable seat. Essentially this is a chair worn like a backpack. Go ahead and be among the first to be able to sit anywhere, anytime and simultaneously make a fashion statement that says "I look like a pink bumblebee."

It seems we have a new low-speed police chase leader.

Not to be outdone by either the LAPD's pursuit of OJ Simpson's white Bronco or a wimpy Long Beach police officer who chased down a Mercedes on a Segway, we seem to have a new title holder in the low-speed police chase category. The BBC reports that a couple of British "bobbies" flagged down a rickshaw pedaled by Ben Mathews. Mr Mathews took aboard the constables and a fellow rickshaw operator who hung onto the back and chased down a suspect who fled while being arrested.

I know its not the same as chasing down a Mercedes driven by a 13 year-old, but I'm still impressed by Mr. Mathews' leg strength and stamina.

Judge sentences man to three years without a date.

A Canadian judge sentenced a man who attacked his last girlfriend to three years without any new ones.

That should make his Eharmony.com profile interesting.

Segway mounted police officer chases down stolen Mercedes.

Now this is what you call a really low speed chase.

Long Beach Police Officer Jose Miguez managed to utilize the breakneck speed (12.5 mph) available on the two-wheeled Segway Personal Transporter to follow a Mercedes and arrest a 13-year old carjacker and his accomplices.

Via Wired.

Alabama gives a whole new meaning to the phrase "legislative floor fight."

Fists were flying on the Alabama State Senate floor yesterday during debate on an election reform bill. Republican State Senator Charles Bishop punched Democratic State Senator Lowell Barron in the head after Barron called Bishop a "son of a [expletive deleted]".

I guess that in Alabama, a bipartisan approach to election reform is out of the question.

From the early days of television, credits that are actually fun (and possible) to watch.

Most people have never heard of Ernie Kovacs but he was both a comic genius and a television pioneer from the days when TV was black and white. At the risk of dating myself and confirming for many of you that I am indeed an old geezer, as a child I watched his TV show every week. He was unique and pretty goofy.

This clip, consisting of nothing else but the closing credits from one of his shows, indicates just how clever Kovacs was and as an aside, reminds me of the days when you could actually read the credits on television shows. It looks crude by today's standards but was very difficult to do with the editing tools available in the late fifties.

Teacher sues kids over movie depicting evil teddy bears and boys saying "yeowwww."

A math teacher is suing four boys for making a video that depicts "evil teddy bears" telling other toys to attack a math teacher with the same name as his. He was apparently traumatized by the violence which according to Jackie Suess, a lawyer for the boys, "was literally stuffed animals being manipulated by the boys, walking around going 'yeoowww' and talking in funny voices, very juvenile.".

I think that it is both ironic and appropriate that the lawyer for these kids is named "Suess."

Hat tip to Above the Law.

In honor of Sgt. Pepper turning 40.

In honor of the 40th anniversary of the release of Sgt Pepper's Lonely Hearts Club Band, I thought it might be appropriate to refer you to this sentencing order from a Montana court. As part of his pre-sentence report, the defendant, one Andrew Scott McCormack, when asked what he thought the court should do, submitted a written response as follows: "Like the Beetles (sic) say, 'Let it Be.'"

Judge Gregory R. Todd, who is obviously a Beatles afficianado determined his sentence this way.

Perhaps in retrospect, Mr. McCormack should have gone a little farther back into the Beatles' music library and asked for a little "Help."

How about this punishment to fit the crime?

I see where Spam King, Robert Alan Soloway is finally headed to court.

Now I know that he is innocent until proven guilty and all that and I know absolutely nothing about the merits of the case but I just can't help but suggest out loud that IF my old friend Jeff Sullivan manages to convict Mr. Soloway, the only possible punishment that would fit his crime would be to require him to spend the next several years on-line - spending his ill-gotten fortune buying penny stocks, Viagra substitutes, herbal penis-enlargement supplements and refinancing mortgages.

So much for whatever was left of the Magna Carta.

In an op-ed in the London Sunday Times, outgoing British Prime Minister Tony Blair takes his country's courts to task for impeding his war on terrorism. Blair suggests it is a "misjudgment" to put civil liberties first.

Blair is pushing legislation through Parliament that would give police "wartime powers." If this legislation passes, police will not need to suspect that a crime has taken place in order to require British citizens to stop and answer questions by police about “matters relevant” to terror investigations. According to a companion column in the Times, "If suspects fail to stop or refuse to answer questions, they could be charged with a criminal offence and fined up to £5,000."

Blair's government has been gradually curtailing many civil rights that have been around for centuries and which we, on this side of the pond, take for granted such as trial by jury and the double jeopardy bar to re-prosecution for the same offense.

So tell me Mr. Blair, when your society looks like theirs, who will have won the war?

Memorial Day (Repost)

Memorial Day emerged out of the grim shadows of the American Civil War. Before the close of the war, women began decorating the graves of soldiers who had died in battle in that conflict.

The practice quickly spread and a few years later, May 30, 1868 was designated as "Decoration Day" -A day for placing flowers on the graves of both Union and Confederate soldiers throughout the United States

In 1882, Decoration Day became known as Memorial Day and soldiers who died in other wars were also honored. Over the years, it has become a day when all loved ones who have died in war and peace are remembered. In 1971, the United States Congress declaired Memorial Day to be observed annually on the last Monday of May

On this Memorial Day, I remember my uncle and others who gave their lives for our country, but I also pray for those that continue to serve to keep America free, and especially those who currently stand in harm's way.

I hope you will join me.

Suggesting that the judge was shorted on her Happy Meal may not have been a good career move.

From David Lat at Above the Law comes this little snippet about William P. Smith -- a partner at McDermott Will & Emery (Chicago), and the head of its bankruptcy department -- actually told Bankruptcy Judge Laurel Isacoff that she was "a few French Fries short of a Happy Meal."

Judge Isacoff's response was a show cause order.

No wonder we are all obese.

Pushing a baby stroller on a Segway?

Hat tip to this Livejournal account.

How NOT to influence a jury.

Defendant Richard Glawson can forget about any sympathy from the jury at his next trial. According to this story in the Boston Herald, after the trial judge refused the prosecutor's request to have Glawson shackled, he sucker-punched an elderly juror, then had to be pulled off of him.

At the time, Glawson was on trial for home burglary, starting a shootout at a mall, carjacking a woman's car, breaking into another home, shooting a disabled man’s dog, carjacking two more vehicles, and shooting a police officer in the hand.

Apparently, incidents like this are not unusual in the Bay State. As the Herald article notes, "Chaos in Massachusetts courts, where the officers are unarmed, is becoming almost as common as jury duty."

It's Deja Vu all over again (with apologies to Yogi Berra).

I don't do politics but I do sometimes do history. It is in that context that I commend to your attention Professor James Grimmelmann's very interesting post over at PrawfsBlawg relating to the no confidence vote on Attorney General Gonzales currently being debated in Congress.

It seems that in 1886, Congressional Republicans passed a resolution censuring the then Attorney General, Augustus Garland, who had refused to turn over executive papers relating to his dismissal of a U.S. attorney from the southern district of Alabama.

Sound familiar?

RAW! Japanese style.

After watching this video, don't you feel foolish for ever doubting the reality of professional wrestling?

Think she can take John Cena?

Daily Mail: Lara Croft taken into custody. Roommate charged as an accomplice.

For you vintage PC gamers and movie buffs who may remember Lara Croft as the heroine of several pretty successful Tomb Raider games and a couple of mediocre Angelina Jolie movies, I have some bad news. According to Great Britain's Daily Mail, a life size Lara Croft mannequin has been impounded by Manchester police. It seems she refused to put down her toy guns after police spotted her through a window and then raided the house. Instead of apologizing for the misunderstanding, police charged her owner with a firearms offense and impounded Lara as evidence.

Talk to the hand arm.

Apparently as an effort at performance art, some "artist" named Stelarc convinced a surgeon to implant a cell-cultivated "ear" in his forearm. Future enhancements will apparently include implanting a microphone inside that will connect to a bluetooth transmitter, "so the ear can broadcast audio from the internet wirelessly."

I guess I must be a Neanderthal but this is just plain weird.

Via Boing Boing.

Personally, I'd call it "Survivor: Las Vegas."

This is just plain embarrassing to judges everywhere.

Let's see. We have a judge who is banned from her own courthouse by her colleagues for bypassing courthouse security for the two personal bodyguards she hired when none of the court bailiffs wanted to work for her. Apparently, she also locks herself in her office with those same two bodyguards, all amid allegations that she "degrades" court employees, reads their e-mail and steals a Rolodex.

I'm not sure if this is more like "Desperate Housewives", "As the World Turns" or "Survivor" but we are definitely talking TV series material here.

Hat Tips to How Appealing and Harmful Error.

Florida decides to discipline an appellate judge for his reasoning in an opinion.

Howard Bashman, the premier source of appellate news at his How Appealing blog, provides some spot on food for thought in his column at Law.com, where he discusses the State of Florida's decision to institute disciplinary proceedings against a judge (full disclosure, it isn't me) on that state's 1st District Court of Appeal. The judge's alleged sin was that he dared to write an opinion in which he suggested that a colleague should have recused himself.

I agree with Howard on this one all the way. Whatever the merits of that issue may be and irrespective of whether asserting such a view may be detrimental to the collegiality of the court, it is obvious to me that the procedural posture of how the case before the court should be decided and by whom, is fair game for a judicial opinion and not properly the subject of discipline.

Now that's what I call a succinct opinion!

Professor Shaun Martin of the University of San Diego School of Law concisely rewrites the 9th Circuit's recent decision in Nichols v. Birdsell.

Maybe the judges over at the 9th and their clerks should check out Evan Schaeffer's "Five Simple Rules."

"You can't arrest me because my Deity can kick your Deity's butt!"

I recently stumbled across this little gem of a case.

It seems that Mr. Robert G. Loudon, a God-fearing resident of Memphis, Tennessee, on a sunny day in June, 1990, was stopped by police for making an illegal left turn. When asked for his license, Mr. Loudon replied that it had expired. The officer then prepared a citation for the illegal turn, and for driving without a license, and presented it to Mr. Loudon for his signature. Mr. Loudon refused to sign, because (as the court explains):

"[Mr. Loudon] advised [the officer] that he could not be arrested because her God was not as big as his God. He referred to her as “an agent of the socialistic government and he felt that it was that type of government that was trying to brand him with this mark."

Mr. Loudon refused to renew his driver’s license because doing so would require him to provide his social security number to the DMV. In a letter to the Tennessee Department of Safety, Mr. Loudon declared that:

"[I]t is illegal for you or anyone else to deny me a renewal of my operator license because I neither have nor will get a Socialist Surveillance Number; and so to do will be a violation of Federal laws both civil and criminal, regardless of any 'Laws' you claim to be acting under color of...."

"I do not have a Social Security number because that number is now becoming the mark of the beast against which we are warned in the Bible at Revelation 13:16-18, 14:11, and other places. I have committed my life to follow the Lord Jesus, Christ, and I cannot permit myself to be defiled with your number, as it would surely defile me."

Alas for Mr. Loudon, the heathen courts of Tennessee weren't convinced. Risking the fire and brimstone of Loudon’s vengeful God and in the best "render unto Caesar" tradition, the Court of Appeals affirmed his conviction and sentence of a $108 fine and thirty days to serve at the Shelby County Correctional Center.

The case is Tennessee v. Loudon, 857 S.W.2d 878 (Tenn. Crim. App. 1993).

Perhaps they were just concentrating intently?

As the WSJ notes here, an Australian study conducted by Professor Ronald Grunstein indicates that "judicial sleepiness" is a cause for concern. The study's conclusion is that "Clearly, judicial sleepiness threatens the integrity of the judicial system." Grunstein reasons that "The frequently monotonous and passive aspects of judicial work would increase the propensity to fall asleep in judges exposed to sleep deprivation or who have sleep disorders."

Fortunately for me, I find that the deathless prose of the briefs and the scintillating arguments of counsel make it extremely unlikely that such a thing would ever ... zzzzzzzz.

Hat tip to How Appealing.

Breakfast for Nerds.

Designed as an art exhibit, this waffle iron turns out your morning carbs in the shape of a computer keyboard.

It looks pretty good to me. Now if I can get a poached egg mouse and maybe some bacon USB storage....

In Great Britain, they'll know where you are at all times.

In order to facilitate a new "congestion tax," the British Government is working on a plan to have static cameras, GPS, and "eye-in-the-sky satellites which will track the location of electronic transponders embedded in license plates. When fully implemented, the government will know the location of every vehicle in the country at all times.

If the words "Big Brother" come to mind, just remember that George Orwell was British.

It looks like Manhattan may be next.

Via Reuters.

Rush hour = power hour.

Endgadget reports on a proposal to turn interstates and freeways into power generators by using wind turbines installed over the road and in the "Jersey Wall" barriers that separate the traffic lanes to harness the wind generated by passing cars and trucks and turning it into electricity.

Interesting idea but I think installing them in the halls of Congress would generate more power than the entire Eisenhower Interstate System.

Roberts is the new Rehnquist (J not CJ).

Whatever your politics or judicial philosophy, you have to admit that the new Chief Justice of the United States has made SCOTUS watching a lot more fun. He has a great sense of humor both on and off the bench, his opinions have always been regarded as crisp and increasingly his dissents are just plain fun to read. Some excerpts:

"We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to 'clearly established' federal law. ... When the state courts considered these cases, our precedents did not provide them with 'clearly established' law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses."

******

"Whatever the law may be today, the Court's ruling that 'twas always so - and that state courts were 'objectively unreasonable' not to know it - is utterly revisionist."

******

"I do not understand how the author of today's opinion can say that Johnson had no effect on Penry I, when he joined a dissent in Johnson stating that the majority opinion 'upset our settled Eighth Amendment jurisprudence.' Now Johnson is dismissed as just an application of 'basic legal principle[s],' over which Justices can disagree; back then it 'upset our settled Eighth Amendment jurisprudence.'"

******

"AEDPA requires state courts to reasonably apply clearly established federal law. It does not require them to have a crystal ball."

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"In today's decisions, the Court trivializes AEDPA's requirements and overturns decades-old sentences on the ground that they were contrary to clearly established federal law at the time - even though the same Justices who form the majority today were complaining at that time that this Court was changing that 'clearly established' law."

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And my personal favorite thus far (I am still chuckling over this one) from Abdul-Kabir v. Quarterman:

"[P]erhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented 'clearly established' federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.

Reading Robert's dissents is a trip down memory lane for me. The humorous yet "we are close friends who strongly disagree" tone is reminiscent of the Justice Rehnquist that Roberts clerked for rather than the Chief Justice Rehnquist who evolved later. Frankly, I like it a lot better than the "you must be an idiot if you disagree with me" tone so prevalent in Justice Scalia's dissents.

To argue or not to argue, that is the question.

Ken at CrimLaw wants to abolish oral arguments in appellate courts. His primary reason is that "appellate court decisions are supposed to be dispassionate, considered, legal decisions." Well, I certainly can't argue with that statement but frankly I fail to see how oral arguments necessarily detract from achieving that laudable goal.

I will be the first to admit that oral argument often makes no difference in the outcome of the appeal and indeed, some appellate courts have largely dispensed with it. Furthermore, Ken is also correct that "an informed, intelligent, and full argument is better made on paper instead of in front of a panel of judges." However, I would nevertheless offer this modest dissent to Ken's post.

First, a historical perspective. Although I don't agree with Ken's characterization of them as "relics" of times gone by, oral arguments are indeed rooted in the Anglo-American legal tradition of an adversary proceeding, which in turn evolved from the medieval concept of trial-by-combat. The very nature of this model would seem to imply that at some point the "champion" doing battle on behalf of his client will actually have an opportunity to set foot in the "arena." I concede that there are those who might prefer the European inquisitorial model of resolving disputes but I had a long career as an advocate and I guess I have a soft spot in my heart for a system that has stood a 750 year test of time.

Second, a well crafted oral argument sometimes makes all the difference in the outcome of the appeal. Even when they are well written, briefs often raise questions in the minds of the judges that can be answered at oral argument and when the briefs are poorly written, the issue(s) may not be clear to the court until clarified at oral argument. In my experience, oral argument changes my vote in conference about 10% of the time and while I know that doesn't sound like great odds, another way to put it is that one appeal in ten turns entirely on dialog I am able to have with the lawyers in the case. Moreover, I suspect that any client would expect his or her advocate to take every possible shot at convincing the court. Contrary to Ken's assertion that "they convey prestige." The briefs and oral argument make the complete package that is designed to maximize the persuasion opportunity for professional advocates.

Finally, my selfish reason for not wanting to completely abandon oral arguments - it's nice to get out of the office and onto the bench occasionally to interact with fellow professionals and discuss fine points of law in a meaningful way.

My court often dispenses with oral arguments when the panel sees no need for them and quite a few lawyers waive oral argument even if we might like to hear from them about the issues but I would find my job a lot less satisfying if we abandoned them completely.

Grading Oral Arguments

Both SCOTUS Blog and How Appealing have posts up here and here about the oral argument grades that Justice Harry Blackmun gave various lawyers who appeared before him during his time on the Supreme Court, including the mediocre grades he gave three lawyers who now sit on the court - Chief Justice John Roberts, Justice Ruth Bader Ginsburg and Justice Samuel Alito.

Blackmun's report card has further roiled the always-simmering discussion of the impact of oral argument on the outcome of any given appeal. Howard Bashman, of How Appealing fame, weighs in with a very thoughtful column on Law.com. I agree with what Howard has to say but I want to expand a little on the points he makes.

First, let's put any appellate result in perspective. The variables involved in the outcome of any case are essentially as follows:

a) The quality of the record, i.e. the facts;

b) The current state of the law based upon binding precedent if you are not in the highest court around or stare decisis if you are;

c) Who the judges/justices are and how they individually apply factors a and b; and finally,

d) The persuasive quality of the written and oral advocacy that the judges/justices get through the briefs and oral argument of the advocates that help them reason though the application of b to a.

Now, these variables cannot be computed in some sort of algebraic formula and as Howard Bashman notes, the best lawyer won't always win. Nevertheless, the outcome of every appeal will turn on how these variables play out against each other and since arguing an appeal is an exercise in persuasion just as the trial was, it follows that the lawyer who does the best job of working these variables through a well written brief and a cogent oral argument, will have an edge over the lawyer who writes a poor brief and/or who was not prepared for oral argument. That edge may well be the difference for your client.

One final thought on Justice Blackmun's "report card." Although his grades were mediocre, Roberts, Ginsburg and Alito had an outstanding success rate in the Supreme Court for their clients. I guess that's the beauty of having appeals decided by more than one judge.

Handicapping SCOTUS

I have been meaning to post this link for over a week now but better late than never.

Joel over at Judging Crimes has provided us with the rules for playing the SCOTUS prediction game. Cynical or eerily accurate? You be the judge.

No ZWI in NJ.

It seems that New Jersey's DWI law doesn't stretch quite far enough to cover someone with a blood alcohol level of .12 who drives a Zamboni on a municipal ice rink.

Thanks to Concurring Opinions for the tip.