The Daily Judge
© 2005 Burton Randall Hanson
           Archives - 09.16.2005 - 09.23.2005
"All the news that gives judges and lawyers fits."
BurtLaw's Daily Judge is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, this is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert you to ideas, articles, stories, speeches, law books, literary works and other things that have interested us and that may interest you. In linking to another site or source, we don't mean either to suggest we necessarily agree with views or ideas expressed there or to attest to the accuracy of facts set forth there.

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About Burton Hanson. Burton Hanson is a graduate of Harvard Law School, admitted to practice in the District of Columbia and Minnesota. He worked one year as Hennepin County District Court Special Term (Civil) Law Clerk, two years as law clerk for the late Justice C. Donald Peterson of the Minnesota Supreme Court, and over 26 years as Deputy Commissioner of the Minnesota Supreme Court. He was a nonpartisan candidate for Chief Justice of the Minnesota Supreme Court in the general election in November 2000 and a liberal anti-war candidate for Congress in the Republican primary in the Minnesota Third District in September 2004. He was one of the first law bloggers (blawgers). He began planning his first blog, BurtLaw's Law And Everything Else in 1999 but delayed starting it until after the 2000 general election. His campaign website, the no-longer extant VoteHans.Com, contained a personal campaign weblog, possibly the first such use of a weblog or blog. In 2004 he also used the personal blog format in his primary campaign for Congress. That site, BurtonHanson.Com, has morphed into a personal political opinion blog and also contains the archives of his 2004 campaign web pages and blog postings.

    Federal courts seek emergency hurricane-related funding. "The nation's federal court system has asked the President for a $65.5 million emergency supplemental appropriations to cope with the effects of Hurricane Katrina...." More (USCourts.Gov).

    Ex-judge found not guilty of rape, bribery. "A jury acquitted former Magistrate Judge Reuben Galvan of rape and bribery charges Thursday after more than four hours of deliberation. The second-degree rape and third-degree bribery charges could have landed Galvan in prison for 12 years. The jury was deadlocked on charges of fourth-degree false imprisonment and misdemeanor battery, and special prosecutor Kathleen Wright would not comment on whether sheíll retry Galvan on those charges...." More (Los Cruces Sun-News 09.23.2005). Earlier story.

    Judge dismisses indecency charge against nude protester. During the noon hour on August 9 Haila Faisal, a 47-year-old Greenwich Village artist, removed her clothes & jumped into a large public fountain in Washington Square Park, which borders Fifth Avenue & NYU & is a hub of activity in Greenwich Village. It is to free speech in NYC what Harvard Sq. is to free speech in the Boston area & what Hyde Park is to free speech in London. Using her body as a billboard or canvas, Ms. Faisal had used red paint to paint anti-war slogans, in English & Arabic, on both her front & back. She had hoped others would follow her lead & jump in & join her. But no one did. Instead, she found herself arrested & charged with public indecency. Her case came on for trial yesterday before Judge Stanley Katz. Her attorney, Ronald Kuby, was prepared to argue that Ms. Faisal's act of public nudity was a form of protected free expression. But the judge didn't let things go that far. Instead, he dismissed the complaint for failing to specify exactly what Ms. Faisal exposed to the public. According to the report in the N.Y. Times:

Lacking the guidance of the arresting officer or a representative from the Manhattan district attorney's office, neither of whom showed up at the hearing, Judge Katz said it was anyone's guess what she had revealed. "It could be anything," he told [Mr.] Kuby. "In some places they don't even want your face exposed."

The Times story suggests that Mr. Kuby was disappointed by the dismissal, because he wanted to argue the constitutional issues. But Ms. Faisal either was relieved or wasn't relieved. The story first says she was relieved but then says, "Asked if New Yorkers could expect a repeat performance, Ms. Faisal paused and said, 'Yes, because I feel bad if I don't say what I believe in.'" We take Ms. Faisal's expression of good faith at face -- no, full body exposure -- value. But we note that the whole ordeal might yield an unexpected bonus: the Times reporter notes that "[Ms. Faisal's] nude paintings of women are on display at the Village Quill Gallery [on Franklin St.] in TriBeCa." For a contemporaneous account of Ms. Faisal's protest & arrest plus a picture from behind of Ms. Faisal (thumbnail above), see Ronda Kaysen, The Naked Truth About the Power of Protest Today (Downtown Express 08.12.2005 - 08.18.2005 issue).


a) For a summary of the caselaw on nude dancing as a protected form of free expression, see, David Hudson, Nude Dancing - Overview (First Amendment Center). I've always been a tiny bit skeptical of claims of constitutional protection made by bar & strip club owners, but I'm also mindful that my main judicial hero, Justice Holmes, enjoyed patronizing risque burlesque shows & was heard to say on more than one occasion relating to this interest of his, "I thank God I'm a man of low taste." Let's put it this way, I'm more interested in defending on First Amendment grounds conduct such as Ms. Faisal's, given the political nature of her act and the circumstances surrounding that act, including that it took place in a public place well-known as a public forum with the widest tolerance for the diversity of free expression & protest. Consider, e.g., this bit from Ms. Kaysen's contemporaneous report, supra: "'Itís kind of hard to shock people anymore,' shrugged Gregory Keller, a Grove St. resident out walking his dogs."

b) The case reminds us of a contempt case that a Minneapolis free-speech attorney & fellow Harvard Law classmate, Jack Nordby (now a district court judge) tried a number of years ago. On appeal Nordby argued many highly interesting constitutional issues but the Minnesota Supreme Court avoided those issues by deciding the case on an issue Nordby didn't argue: specifically, it held that the defendant-appellant's conduct was, as a matter of law, not contemptuous. See, Jack Nordby, "The Aesthetics of Criminal Contempt: There Are No Bad Judges," The Champion (June 1987 at p. 20). For more on Judge Nordby, see, infra.

    Judge Nordby on courthouses as fortresses. "I donít like to see courthouses turned into fortresses and Iíve been against increased security...Iíve never been afraid. Iíve had some people mad at me, but itís never occurred to me that Iím really in danger beyond what I should have expected in this job. And I think a certain amount of danger in the courts is another way of saying we have free courts with open access. But you do have to worry about the litigants and the witnesses and the other court personnel, and I suppose on balance weíve worked out a fairly decent compromise.  If somebody is determined to kill a judge, itís not as if he would have to do it in a courthouse...." From Miles Lord and Jack Nordby, The View From The Bench (Minnesota Law & Politics).

    Will pay raise & expense account scandals affect retention elections in PA? "Anger unleashed by the legislative pay raise has given rise to a familiar refrain: Remember in November. The problem, for citizen activist groups, is that lawmakers are not up for reelection till next year. But some activists are now saying that voters can still make their voices heard in November by removing two members of the Pennsylvania Supreme Court. They argue that the high court, whose members will benefit from the pay raise, has allowed the General Assembly to routinely pass [so-called "garbage"] bills that violate the state constitution...." More (Philadelphia Inquirer 09.23.2005). Earlier related entries and comments: More on the revelations about PA Justices' expense accounts - Should government pay for judge's trip to attend Christian law seminar? - High court justices' expense accounts under scrutiny.

    Retired judge killed while crossing street. "Paul P. E. Bookson [72], a retired New York State judge [who was still working as a judicial hearing officer], died last night after he was struck by a motorcycle while crossing a street in downtown Brooklyn yesterday afternoon, the authorities said...." The driver of the motorcycle was a 26-year-old off-duty female police officer, who was ticketed for driving with only a learner's permit. More (N.Y. Times 09.23.2005).

    Disgruntled litigant stabs & kills wife, chases judge & kills him. "Furious after losing a court case against his former wife, an Indonesian senior Navy officer stabbed her and a judge to death in a [religious court] in East Java province, local media reported Thursday...Upon hearing the verdict in his ex-wife's favour, [the officer] stabbed [his ex-wife] in the back three times with a standard military-knife. Immediately after, the enraged officer chased [one judge] and stabbed him in the heart, while two other judges on the panel escaped the killer...." More (NewKerala.Com 09.22.2005). Comment. Not a funny matter, but this story reminds me of the story a former Dean of Harvard Law School (& lots of other people, probably) tells about three hunters who not only get lost but lose their guns. When they come upon a sign warning of wild bears, one of them takes off his hunting boots & puts on his running shoes. The others make fun of him, saying, "You can't outrun a bear." He replies, "I don't need to -- all I need to do is outrun one of you guys." Needless to say, we don't mean to suggest that the two Indonesian judges who survived didn't do everything in their power to try defend the woman and their fellow judge from their attacker. Nor would we ever suggest that any member of a multi-judge panel would either wear running shoes under the robe or run in this situation. All the judges we know are, to paraphrase Gary Keillor, "above average" in courage. You betcha.

    The strategy & technique of judging (Judge Roberts, take notice). "[Judge Valerie] Smith's technique is well practiced. Using a large, sharp knife, she cuts through the centre of the fruit filled entries in the rich fruit cake section. She then closely scrutinises the fruit to observe its uniformity and finally puts the entries to the taste test. A tiny slither [sliver?] from the centre of the entries is all Mrs Smith needs to decide who will take home first place...." More (Singleton Argus - Australia 09.22.2005). Comment. Even though I don't have Judge Smith's experience, whenever I'm confronted with a fruitcake, I don't feel the need to taste it, but that's just me. I merely look at it, identify it as a fruitcake, wrap it, & give it to someone else. It's an old practice called pre-judgment. Try it.

    How they pick High Court judges in Australia. "There is a round of secret consultations with state governments and within the legal profession, a meeting of cabinet, a short news conference by the Attorney-General and, presto, a new judge for our highest court...While our appointment process does not have the same problems as that of the United States, we also miss out on some of the benefits...Unfortunately our opaque process has a clubby feeling to it. It generates a sense that selection to our most important bench is based more on who you know than any objective criteria...." Nicolo Roxon, Courting Trouble at Club Judge (The Age 09.22.2005).

    If you build a judicial system, the capitalists will come. "The low rank of India in the list of countries attracting foreign investment was due to the 'legendary slowness' of the Indian court system, the International Finance Corporation (IFC) said...." More (ExpressIndia.Com 09.22.2005). Comment. It's not only true that if you build a good legal system, the capitalists will come -- wherever capitalism goes, like Johnny Appleseed it plants the seeds of good legal systems. See, China's flawed legal system - a work in progress?

    Every man (or woman) a judge? Huey Long, the legendary governor of Louisiana, was elected on the theme of "Every man a king!" These days, everyone who wants to be a judge can be one, given all the competitions. Are you an Iowan who wants to be a judge & dreams of traveling all over, well, uh, Iowa? Then you should aspire to being an "Iowa Great Places" judge: "Seventy-five applications, access to millions of dollars and just three winners. It's all at stake with Iowa's Great Places. Wednesday judges for Iowa's great places stopped in Sioux City...All together, more than a dozen Siouxland cities applied. That includes Storm Lake, Emmetsburg and Okoboji. It will take about three weeks to get to all the applicants...." More (KTIV 09.22.2005). Comment. I'm trying to get named a Great Places of Tuscany Judge, then Great Places of the South of France Judge, then Great Public Art of Barcelona Judge.

    The courthouse as home. "About two dozen people have taken the term public property literally when it comes to the Hamilton County courthouse. Homeless people are camping out on the courthouse property, sleeping on benches and relieving themselves there, enraging one elected official and forcing workers to hose down the area daily. 'I saw some guy (urinating) on the courthouse at 4 o'clock one day,' Auditor Dusty Rhodes said Wednesday...." More (Cincinnati Enquirer 09.22.2005). Comment. Rudy Guiliani knows how to solve your problem, Cincy. See, Andrew Kirtzman, Rudy Guiliani: Emperor of the City (2000).

   Jurors will see sex toys in trial of ex-judge. "Jurors hearing the case against a former judge accused of exposing himself in his Creek County courtroom will be allowed to see the sex toy at the center of the state's allegations, a judge ruled Tuesday in rejecting a defense motion. They also can hear testimony that a second 'penis pump' was seen under former District Judge Donald Thompson's bench, among other evidence Thompson's attorneys sought to have barred from next week's scheduled trial...Thompson, 58, who spent more than 20 years on the bench before stepping down more than a year ago, faces three counts of indecent exposure. Prosecutors allege he masturbated with a penis pump under his robe while presiding over two murder trials and a civil trial in 2003. Thompson denies the allegations and said the penis pump seized in the case was a gag gift from a friend...." More (Washington Post 09.21.2005). Comment. What do you expect me to say? Well, here goes: If the judge had been wearing one of our  BurtLaw Super-Privacy Robes -- a double-layer sound-insulated judicial robe ("a robe within a robe") with the double-closure-system (zipper and velcro-fasteners) designed by Dr. F. Lavoris Pusso, Ph.D., SuperNintendent -- he'd have a better chance of prevailing in his defense. He'd be able to say, "No way could she have heard what she said she heard or have seen what she said she saw, 'cuz I was wearing a Midnight-Black BurtLaw Model 220."

    Judicial Conference supports citing unpublished opinions. "The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007...The citation rule change, if ratified by the Supreme Court and untouched by Congress, would end a practice that brought charges of a hidden, unaccountable system of justice against some of the nation's largest and most important appellate courts. The 2nd, 7th, 9th and federal circuits ban citation of unpublished opinions outright, while six other circuits discourage it...." More (Legal Times 09.21.2005). Comment. Approximately 4 out of 5 opinions filed by federal circuit courts and a high percentage of state appellate opinions are "unpublished" -- unpublished in the sense that although they are made public and are available online and in other databases, the parties (depending on the jurisdiction) may not cite them nor may courts consider them of precedential value. The late Judge Richard Arnold of the 8th Circuit U.S. Court of Appeals once described these rules as follows: "We may have decided this question the opposite way yesterday, but this does not bind us today, and, what's more, you cannot even tell us what we did yesterday." More (N.Y. Times 12.25.2002). Judge Alex Kozinski, of the 9th Circuit, himself an unpredictable broadly-respected darkhorse Supreme Court nominee, described his opposition to publication of all opinions in testimony before Congress in 2002. More. Evidence is often admitted "for what it's worth." We believe in more, rather than less, transparency in the judicial process, and believe all opinions should set forth sufficient facts and reasons so the public may understand and fairly evaluate the court's decision, all opinions should be published and available online, and that parties should be free to cite any such opinions "for what they're worth," if only to apprise judges what other judges in their circuit and other circuits have done in like situations. Judge Kozinski's statement that if opinions are unpublished, many judges, himself included, will say less in the opinions that otherwise would have been unpublished, reminds me of when I was a kid and one of my playmates wouild say if he didn't get his way in a ball game he'd take his ball & go home.

    More on the revelations about PA Justices' expense accounts. "Working as a public official and leaving the world a little better than one found it provides personal satisfaction -- the validation of one's life. If there are financial sacrifices to be made, so be it. Taking the job was a choice. That's the myth. The reality is quite different. The seven justices of the Pennsylvania Supreme Court ran up more than $164,000 in 'business' expenses last year, reports The Patriot News of Harrisburg. That's in addition to their $170,000-plus salary and a $17,000 package of fringe benefits. These are no-cap expense accounts...Thomas Saylor charged 34 car washes to the public. Justices also like to pick up the dinner tab so it does not appear they are beholden to anybody. Some bills exceeded $400. Russell Nigro submitted at least 115 tabs, many from fancy restaurants. In fact, Justice Max Baer thinks splitting the check is 'amateurish.'" More (Pittsburgh Tribune-Review - Editorial 09.21.2005). Eric Heyl, High court has high expenses (Pittsburgh Tribune-Review 09.21.2005). Earlier related entries and comments: Should government pay for judge's trip to attend Christian law seminar? - High court justices' expense accounts under scrutiny.

    Queen for a day - or two? There used to be a rather sad 1/2 hour "reality" TV show in the 1950s called Queen for a Day, in which four women would tell sob stories about how bad off they were & the audience would select one of them to be "Queen for a Day," crowned & presented with a few prizes (say, a washing machine) by former carnival-pitchman Jack Bailey. Bailey opened the show by asking (shouting), "Would you like to be 'Queen for a Day'?" How about Chief Justice for two days? Ross Davies, William Cushing: Chief Justice of the United States, 37 U. Toledo L. Rev.    (Spring, 2006), summarized by Tony Mauro, argues that John Roberts won't be the 17th Chief Justice but the 18th, pointing to evidence that for two days in February of 1796 Associate Justice William Cushing was in fact the Chief Justice. Comment. I'm not going to lose any sleep worrying about whether Roberts is #17 or #18. To officially have been Chief for two days ain't much different than being acting chief when the real chief is out of town or out of commission, something that happens all the time in appellate courts.

    Colorful judge, removed from bench, dies of mystery illness. "J. Kevin Mulroy, famous as a straight-talking, gun-toting judge before he was removed from the bench for misconduct, has died from a mystery illness, his family said. He was 53. Mulroy arranged for an autopsy on himself so his unknown illness could be identified for his family, said his sister, Martha Mulroy, an Onondaga County legislator. Her brother was first stricken about four months ago, she said...." More (N.Y. Daily News 09.21.2005). Details (Syracuse Post-Standard 09.21.2005). Comment. The two stories, particularly the second, illustrate the human trait of needing & wanting to be able to give a name to something new & different or mysterious or out-of-the-ordinary, such as an illness.

    New High Court Justice not a 'crazy feminist.' "Australia's new High Court judge [Susan Crenna, 60] is a grandmother who throws wild St Patrick's Day parties, complete with drums, and once accidentally turned off a power station...Federal Solicitor-General David Bennett, a lifelong friend, said Justice Crennan was a brilliant lawyer and balanced person. 'She doesn't come with baggage of any kind,' Mr Bennett said. 'She does not have any sort of extreme views.'...Mr Bennett added Justice Crennan was not a 'crazy feminist' [and that] 'She's younger than any of them (in the High Court).'" More (Melbourne Herald-Sun 09.21.2005). Comment. It's interesting how it's an "in" thing, even in Australia," for an appellate judge to be both quirky (in harmless ways) and bland, "balanced," "young," "without baggage," "moderate," etc. It seems to me that it is to the credit of Harvard College that it likes to admit not just boring "well-rounded" students but what one of its officers described as the "well-lopsided" student. (More.) See, in this regard, Louis Menand, The Thin Envelope, (The New Yorker 04.07.2003) ("One of the effects of the increase in demand from the days when headmasters could chauffeur their preferred students into élite colleges is a shift in emphasis from what some admissions officers refer to as B.W.R.K.s -- bright well-rounded kids -- to what are known as 'well-lopsided' students. Itís no longer the students who are well-rounded, in other words; itís the class. This is why an applicantís special markers matter so much: differentiation is what colleges are looking for. Harvard rejects twenty-five per cent of its 'toll free' candidates. It is not looking for the perfect student; it is looking for the perfect class."). It's too bad that no President can "get away" with appointing someone who's a little "lopsided," someone with a little "baggage." Give me a person with some "baggage," someone who's "lived a little," someone who's been "laid low by Life" a time or two -- give me such a person any day over the perfect little fellow or gal who's always followed the straight & narrow. My ideal state or federal "final" appellate court, therefore, would involve, as "Sir T. Browne" (whoever the heck he was) put it, "A farraginous concurrence of all conditions, tempers, sexes, and ages" -- an agglomeration of "well-rounded" and "well-lopsided," some with "baggage," some poor souls without. See, A 'Farraginous' Supreme Court. Here's a link to good poem by W.H. Auden that I first read as a student in Freshman English taught by the wonderful & beautiful twenty-something Elizabeth Breeland Rogers during the 1961-1962 school year at S.M.U. It's called The Unknown Citizen. Are you one?

    China's flawed legal system - a work in progress? "The law...has become a front line in China's struggle to modernize under one-party rule. Yet...miscarriages of justice that have come to light this year suggest that China is struggling with a fundamental question of jurisprudence: Do officials serve the law, or do laws serve the officials? Or, to put it another way, is the Communist Party creating rule of law or rule by law?" More (N.Y. Times 09.21.2005). Comment. Two points: a) Next time you hear the Rush Limbaughs of the world rant & rave about "out-of-control liberal judges," remember this: if it weren't for such judges, we in the proud USA might still be reading about the use of the third degree by police to extract unreliable confessions. Come to think of it, we still occasionally read about the use of such methods, which is why the Minnesota Supreme Court's case law requiring recording of custodial & other interrogations (see, BurtLaw's CaseLaw) is so significant and why we must remain ever vigilant and not be seduced by distorted critiques of our judges. b) There is a largely-unnoticed movement around the world, but especially in Asian countries, including Indonesia and China, toward improved (more transparent, more reliable, fairer, more professional) judicial systems. This story speaks to that. As I've been saying, in my view, the great engine behind it all is the movement toward freer international trade or, if you prefer, the movement toward capitalism. As every law student learns or ought to learn, much of the greatness of the common law tradition is owing to capitalism -- or, some might argue & as Max Weber would say, The Protestant Ethic & the Spirit of Capitalism. Max Hartwell, the economic historian, put it this way: "In England the common law was really based on what were the best practices of the merchants, what happened in the past and so forth. It was flexible in a way that Roman law was not. Roman law had to be changed from the centre. Common law was changed in courts by judges listening to people arguing for their rights." Liberalism, Capitalism & Institutional Development, in Policy (Center for Independent Studies, Winter 1999).

    Judge orders health warnings on tattoo ink. "A judge ordered two manufacturers of ink used for tattoos to place labels on their bottles warning consumers of potential health risks, an organization said Tuesday. Superior Court Judge Irving Feffer granted a preliminary injunction against New York-based Huck Spaulding Enterprises and Arizona-based Superior Tattoo Equipment, the American Environmental Safety Institute said. In August 2004, the California nonprofit group sued the two companies and seven others, alleging they were exposing people to potentially dangerous levels of lead and other metals...." More (San Jose Mercury-News 09.21.2005). Comment. Question: Judge Roberts, in your view is this another "out-of-control liberal judge"? Answer: I'm not an expert in tattoo law & I wouldn't want to speculate as to how I might rule on this, given the high likelihood that this and other tattoo cases will come before the Court in the years ahead.

    Judging divorce property & custody cases by computer? "[Divorcing] couples can spend a fortune in legal fees wrangling over property, possessions and custody. But a new computer program called Family Winner may bring the protagonists to their senses and short-circuit court battles. Developed by Emilia Bellucci, a lecturer in the school of information systems at Victoria University, with John Zeleznikow, professor of information systems, the program is designed to minimise conflicts in the Family Court. It requires a couple to prioritise their demands, assigning each a numeric value so that the sum of their desires totals 100. 'Then the program distributes everything according to who wants it the most,' Professor Zeleznikow said...A second program, Split Up, developed with Andrew Stranieri of the University of Ballarat, can calculate with impressive accuracy the likely results of property settlements in Family Court proceedings -- saving the protoganists the trouble of starting a legal battle, Professor Zeleznikow said...." More (The Age 09.21.2005). Comment. I'm not sanguine that our policymakers, judges & lawyers have it in them to improve the dreadfully expensive, inefficient & unfair divorce processes that prevail in most states. See my comments at Other divorce tales. Back in 2001, Simon Carr wrote in the UK Independent, "The ability of divorce lawyers to drive a wedge between an amiably separating couple is well known. It's how  fees are generated. There's no money in a three-letter correspondence. (I say no money: there's £600.) Having watched a friend go through the full gruelling marathon, it remains amazing that this legal practice is still legal." I don't doubt there are many people in this country who might think he's describing our lawyers. But lawyers aren't the only "villains" in the divorce game that fosters so much of the disrespect for our civil justice system.

    Judge orders man who took beaver to guard beaver. "Greene County Common Pleas Judge Stephen Wolaver of three adults accused in the two July beaver-nappings to guard the 250-pound street art statues until they are auctioned off by the city's 25th anniversary committee in October for three charities...." More (Dayton Daily News 09.20.2005). Comment. The punishment should fit the crime, not give the defendant a chance to revel in it.

    Judge who resigned says he'll appeal removal. Back in 2003 the New York Commission on Judicial Conduct censured Charles Pennington, a nonlawyer justice of the Alexandria Bay Village Court since 1982. Click here. According to a story in today's (09.20.2005) Newsday, the commission has ruled that Pennington, who resigned after the current petition was filed, should be removed because he used racially inappropriate language during a trial of an African-American man and because he took a 17-year-old female defendant to his home after he conducted her arraignment. It's hard to tell from the news story what the facts & circumstances were regarding the judge's alleged use of racially-inappropriate language. The news story says, somewhat confusingly, that "Pennington responded to an African-American defendant's objection to the phrase 'colored man' by saying, 'I could understand it if he would have called you a Negro or nigger, that would be racial.'" According to the story, the judge took the girl home after her arraignment because she said she had "no place to go" and she apparently made some phone calls from there, then left. Comment. Without more, it's hard to know if removal, which would preclude Pennington from being a judge again, is justified. However, we can't resist reprinting here, in combined form, some of the statements Pennington apparently made to the reporter:

What I did wasn't that wrong. But their ethics are cut and dried. You can't breathe without having to be accountable. [The African-American defendant] didn't have representation, so I thought I should explain myself. Judge Judy calls people stupid all the time. I don't see her removed from office.

    Holding court in the great hall at Heidelberg College. "When Mindy Wells changed her plea to guilty [to fifth degree possession of crack-cocaine, for which she received an 11-month prison sentence] yesterday in the Seneca County Common Pleas Court, she did so in front of dozens of students in a room festooned with college banners. Judge Steve Shuff moved his courtroom yesterday afternoon to the great hall of Heidelberg College to give students easier access to the workings of the legal system. The event was an effort by the college to commemorate Constitution Day, the anniversary of the signing of the U.S. Constitution on Sept. 17, 1787...." More (Toledo Blade 09.20.2005). Comment. Minnesota is either the pioneer or one of the pioneers in this sort of "judicial outreach." I've said in previous entries, only half in jest, that I won't be surprised if we start seeing our judges taking the courts on the road to "perform" at rodeos & fairs. Civic centers? It's already happened. See Students to see state's justices at Civic Center (Redding Record-Searchlight 08.06.2005). A few years ago I saw a PBS documentary filmed in China that included footage of a "trial" held in a civic center auditorium, shortly after which the poor guy found guilty was paraded through the streets, then taken out of town to the place where "they" do such things & executed. One prone to exaggeration for rhetorical effect could at least argue that an appellate court's hearing oral arguments in a civic center or other auditorium before 1,500 or more people is not that unlike the Chinese "show trial" depicted in the documentary -- or Fidel Castro's "Roman Circus"-like "show trials" held in outdoor stadiums after he came to power in the 1950's. But I won't make such an extreme argument. I'll just say I oppose this form and most forms of "judicial outreach" as practiced in Minnesota & other states. I'm pretty much alone in this & perhaps it provides further support to those who've criticized (or praised?) me as being a curmudgeon and a misanthrope. But one very wise & intelligent judge told me after retiring that "taking the court on the road" in this way makes the court a kind of "traveling dog'n'pony show." I can't say it better.

    Trial continues in sex-tourism, child porn trial of ex-judge. The defendant in question is a former Superior Court Judge in New Jersey named Stephen Thompson, and he's relying on the insanity defense (post-traumatic stress disorder). "For the last week, the trial in federal court in Camden has focused on the graphic images from Thompson's 'monstrous' collection of child pornography. With the prosecution resting yesterday, the focus shifted to the gruesome details of combat and Thompson's injuries, as [Lt. Col. Forrest] Rittgers took the stand to describe [a] battle [along the Cambodian border that occurred] on July 29, 1969 [during the Viet Nam War]. Thompson ...was shot 20 times in the abdomen, and his genitals were mutilated. His right leg was amputated at the hip, and he spent three years recovering in the hospital. His attorneys have said that Thompson, 59, was trying to re-create his 'lost virility' by amassing 6,000 images of child pornography and traveling to Russia to have a videotaped sexual encounter with a boy...." More (Philadelphia Inquirer 09.20.2005). Earlier story: Ex-judge on trial in federal court for traveling to Russia to have sex.

    Judge Rebecca Pallmeyer - judge in Illinois Governor's fraud trial. "The federal judge calling the shots in the corruption trial of former Illinois Gov. George Ryan has local roots. U.S. District Judge Rebecca R. Pallmeyer is a graduate of Lutheran High School South in Affton and returned last spring to talk with students there about her work...." More (St. Louis Post-Dispatch 09.19.2005). Comment. Judge Pallmeyer was an outstanding law clerk during the 1979-1980 term for Minnesota Supreme Court Justice Rosalie E. Wahl, with whom I was lucky to work during my 28+ years as aide at the Court.

    Mobile courts. "The NWFP judiciary is on course to become a trendsetter in the country by introducing a new system of mobile courts in each district of the province, reports said yesterday. The step is aimed at providing inexpensive and speedy justice to the masses at their doorsteps, according to Chief Justice, Peshawar High Court, Justice Tariq Pervaiz Khan...." More (The Qatar Peninsula 09.20.2005). More on Peshawar. And see, To Many in the Amazon, Government Comes on a Boat (N.Y. Times 09.18.2005).

    Becoming a judge. "On September 18, the Election Committee of judges and the State Students Admission Commission have carried out test examinations with the purpose of election on vacant posts of judges of 1048 candidates who are not judges...223 persons, who have garnered 60 and more points at test examination proceeding during 4 hours, have received the right to participate in the next stage...." More (Azertag - State Telegraph Agency of Republic of Azerbaijan 09.19.2005).

    Gov. picks new Justice of Tennessee Supreme Court. "Gov. Phil Bredesen today named Cornelia 'Connie' Clark to serve as the newest justice of the Tennessee Supreme Court, where she will fill a vacancy created by the retirement of Justice Frank Drowota...Clark has served since May 1999 as director of the Tennessee Administrative Office of the Courts...." More (Chattanoogan 09.20.2005).

    Judicial selection in N.Y. & the odor of performing seals. "It's that time of year again, just following the primaries, when New York's political parties gather for their judicial nominating conventions to create state Supreme Court justices.
This thoroughly rotten and discredited process, where handpicked delegates act like trained seals for the party bosses, supporting their judicial candidates of choice, is unique in the nation. It excludes any participation by voters and lets pols alone choose who will populate the bench of New York's most important trial court. And it is, outrageously, required by state law...." From an editorial titled The Faint Aroma of Performing Seals (N.Y. Daily News 09.19.2005).

    'Elegant' Judge Faye Collier Kennedy (1941-2005). That's the headline adjective used by the Seattle Post-Intelligencer (09.19.2005) in describing the late Judge of the Washington State Court of Appeals in its obituary. "'I think she was one of the early women lawyers who had the experience of joining the bar (association) and finding that the bar met at a club that didn't allow women,' [Judge Mary Kay] Becker said. 'She had to see that they changed their ways so that she could participate in the bar.'" Becker is the source of the adjective used in the headline: "Elegant -- that's the word that comes to mind. She's just a lovely lady."

    Excerpt from grilling of Roberts by Ted & Joe over what he wants for lunch.

Judge Roberts: I think I've made myself perfectly clear, Senator Biden. I have a personal preference of lunchmeat, but because of what has happened, what will happen, and what is happening now, I think it is in the interest of the court I not reveal my personal preference on the subject of lunchmeat. Thank you though for asking me. I'm very humbled.

Sen. Kennedy: Well, we're getting you turkey.

Sen. Biden: Do you want chips? I'm getting barbeque.

Judge Roberts: Thank you again for asking me. But, as I have already stated, I don't want you to hold me to my word on sandwiches or chips. I may want ham now, but in the future I may want turkey. ... Or ham.

More (RedState.Org 09.17.2005).

    Red Mass to signal start of court term. "A traditional Roman Catholic Mass signaling beginning of the fall court terms internationally will be held at 5:30 p.m. Oct. 20 in St. Matthew Catholic Church, 706 Beach St., [in Flint, MI] with judicial officials expected to join area Catholic attorneys and the legal community in the service...The service, called a Red Mass, is a longtime tradition in the Catholic church scheduled to coincide with the opening of the Sacred Roman Rota in Rome, the U.S. Supreme Court and other judicial bodies throughout the world." More (Flint Journal 09.19.2005). Comment. I love the use of the word "expected."

    O'Connor will be sitting when Court opens. "Her legacy not yet sealed, Justice Sandra Day O'Connor is getting an unexpected final chance to select fights for the Supreme Court to take on and to influence colleagues in abortion, capital punishment and assisted suicide cases. O'Connor's delayed retirement leaves in place -- at least for a couple of months -- a power broker, popular and respected among the other justices...." More (WTOP 09.19.2005).

    Judge shot & killed in court chambers. "A man who ran amok in a family feud on Monday killed a judge and wounded an attorney in a Montenegrin court, reported the Beta news agency. It said Judge Milorija Pejovic was fatally shot in her office in the court building in Bar, on Montenegro's Adriatic coast...." More (News24.Com 09.19.2005).

    Criminal courts face crisis in UK. "The criminal justice system faces widespread disruption next month when QCs join hundreds of barristers in refusing to appear in criminal trials. The threat of chaos across England and Wales, with trials being halted or adjourned, comes after the collapse of talks between Bar leaders and the Lord Chancellor and his officials on rates of pay. Hundreds of solicitors will also back the barristers...." More (UK Times 09.19.2005).

    Taliban's new target: judges & mullahs. "For months the judges and mullahs of Afghanistanís southern city of Kandahar have been too afraid to venture outdoors, fearing they are the new targets of the ousted hardline Taliban. The president of the criminal court, Atta Mohammed, has not left the court building where he lives and works since another judge was killed in the city, the former heartland of the Islamic regime, two months ago...." More (Pakistan Daily Times 09.19.2005).

     Should government pay for judge's trip to attend Christian law seminar? Let me ask you this: Should government pay for judge's trip to attend Islamic Sharia Law seminar? Rupert Doan, 72, an appeals court judge in Cincinnati, has asked the county board to pay $1,771 for a trip to Naples, Florida to attend a continuing education seminar sponsored by the Christian Legal Society. The judge is quoted as saying, "I happen to be a Christian, and I happen to be in the legal field, so I thought it would be appropriate." But, according to this piece in today's Dayton Daily News "[I]t's not because of the religious theme of the conference. Commissioners said they will deny Cincinnati-area Appeals Court Judge Rupert Doan's request because the conference is being held in an 'exotic' location Naples, Fla...." One commisioner, Phil Heimlich said, "I'd like to attend the seminar myself because it's very much similar to my beliefs. As far as the content, I have no problem with that." Comment. I'd go one step farther than the commissioners: I don't think government ought to pay for any out-of-state trips for judges or any other government officials to attend conventions, seminars, judicial meetings, etc., or, for that matter, for any in-state trips to such gatherings held at resorts, retreat centers, etc. But that's just me.... BTW, I wrote a piece on this some time ago titled "Government-funded trips by judges to Hawaii, Disneyland, Squaw Valley." It's posted at BurtLaw's Law and Judicial Economics, along with other opinions & ideas of mine on judicial economics. Short of banning use of taxpayer funds for such trips, citizens ought to insist on easier access to information bearing on judicial economics:

Each individual judge's work calendars and timesheets and travel-and-expense reimbursement request forms are public documents readily obtainable by any citizen using the "sunshine" or openness-in-government law. These and similar documents can be made more easily accessible to ordinary citizens by placing them on the court's internet web site. Similarly, the court should put online for public scrutiny any statistical reports that the chief justice receives. Ultimately, I believe anyone who is interested ought to be able to type in any trial court or appellate court judge's name and obtain public information that will aid one in assessing that judge's work habits, productivity, expenditures of public money, etc. Moreover, after the fact one should be able to type in the name or number of any case and follow that case from start to completion, viewing, for example, at the supreme court level, the path and accompanying timeline as an opinion circulated through the supreme court, with the public given access to the dates the majority opinion and any separate opinions were put in circulation, the name and how much time each judge spent on the case before passing it on, etc.

More at Judicial Independence & Accountability, an essay I wrote in 2000. And see, infra.

    High court justices' expense accounts under scrutiny. "[Pennsylvania's] seven Supreme Court justices last year billed taxpayers for a total of $164,000 in food, travel and lodging expenses that included $300 dinners, $1,766 to frame an office picture and an $85 bottle of wine, according to a published report. The seven justices each charged from $13,737 to $36,894 in expenses last year, The Patriot-News of Harrisburg reported Sunday. Pennsylvania's justices are among the highest paid in the nation, each earning more than $170,000 a year. They also enjoy an uncapped expense account in addition to their salary and a $17,000 benefits package that includes long-term care insurance, health benefits and up to $600 a month for the lease of a vehicle...." More (Centre Daily Times 09.18.2005). Cf., Member of Parliament defends flights at public expense to judge beauty pageants (Brisbane Courier-Mail 09.20.2005).

    Another soul-less public building? "Architects unveiled designs for a new federal courthouse downtown this week, a stylish, seven- story, 347,000-square-foot building that builders hope will serve as an added attraction for the beautification efforts on Church Street...'It will create a linear plaza along Church Street that will provide a park-like setting for the public to enjoy,' said Mildred Quinley, a spokeswoman for the federal General Services Administration. 'The building will replace the aging courthouse and provide the courts with a state-of-the-art new facility, with all the latest security features.'...Michael Graves & Associates, an architectural firm from Princeton, N.J., and Brentwood's Thomas, Miller & Partners designed the building...." More (The Tennessean 09.18.2005). Comment. We hope the building, if approved, is a good one. Other such buildings approved by the GSA and recently built fortress-style state & county court buildings, including our Minnesota Judicial Center, don't make us optimistic. We would suggest that all urban and suburban planners and members of boards approving new public buildings consult the works of James Hillman, the profound Jungian depth psychologist. Here's a hint at what he's all about:

Hillman: We've had a hundred years of analysis, and people are getting more and more sensitive, and the world is getting worse. Maybe it's time to look at that. Therapy sees the soul as being only within, on the inside. By not recognizing that the soul is also in the world, therapy can't do its job anymore. The buildings are sick, the institutions are sick, the banking system's sick, the schools, the streets -- the sickness is out there.

Ventura: As though having denied the spirit in things, the spirit -- offended --comes back as a threat. Having denied the soul in things, having said to things, with Descartes, "You don't have souls," things have turned around and said: "Just you watch what kind of soul I have."

Hillman:  Therapy emphasizes the inner soul and ignores the outer soul, supporting the decline of the actual world. Yet therapy goes on blindly believing that it's curing the outer world by making people better. We've had that for years and years: [People saying,] "If everybody went into therapy we'd have better buildings, we'd have better people, we'd have more consciousness." It's not the case.

See, Michael Ventura and James Hillman, We've Had a Hundred Years of Psychotherapy and the World's Getting Worse 4-5 (1993).

    How about a courthouse surrounded by & filled with flowers? "District Judge Jim Lovett says itís no surprise to him that research proves working with plants changes lives. 'Itís exactly what we expected to happen a little over eight years ago,' Lovett said about results from a [Texas] 6th District Community Supervision and Corrections Department horticulture program. Horticulture therapy has reduced recividism 23 percent,' Lovett said of an in-house research study conducted by the local adult probation department. 'If you projected that statewide, we could save about $88 million dollars a year in prison costs.'" More (The Paris News 09.18.2005). Comment. Do all the guys on death row down there in Texas get a free plant to tend? Seriously, we don't make fun of the good judge's enthusiasm for the program. We would expand it to allow people in jail "out" on work release to work, with retired people and members of local garden clubs as mentors, on interior & exterior courthouse beautification. Further reading: Airports, subways, museums, courthouses - Clint Stephens, courthouse custodian -- and more - Might Mr. Stephens' flowers lead to better government?

    How about a courthouse tunnel? "An underground tunnel was supposed to make it easier for employees to walk between a new $69 million judicial center and the old courthouse next door. Judges, attorneys and clerks could avoid multiple trips through security, move records more easily and save precious time. But plans for the $1.5 million tunnel have been scrapped, and the tunnel is not included in the project's latest estimate...." Some call the entire courthouse project a boondoggle. More (Herald-Tribune 09.18.2005). Comment. We take no position on the tunnel proposal, although we should say we were & are fond of the Harvard Law School's great tunnel system, connecting all the class & office & library buildings. (The legendary, and legendarily-large, Dean Roscoe Pound once hid out there at night & tackled a thief who'd been taking things from student lockers.) We also liked & like the tunnel system connecting all the buildings in the Minnesota capitol complex (and add that we strongly oppose any plans, should anyone ever devise them, to construct a skyway to connect the Minnesota Supreme Court's historic courtroom on the east wing of Cass Gilbert's Minnesota Capitol with the fourth floor chambers of the Justices of the Court in the Minnesota Judicial Center, across the street). You ask, "How about one of those rope suspension walk bridges that sway perilously in the wind?" I say, "That's more like it."

    India's litigation problem -- maybe they should outsource cases to U.S. "'The government is one of the biggest litigants today and the present system of government litigation being handled departmentally is one of the causes for delay and inefficient handling,' [Calcutta High Court Chief Justice V.S.] Sirpurkar  said. 'India has a litigating public. The concept of litigation has increased, as has legal literacy. There are 26 judges in the Supreme Court and 640 in the high courts. Bengal has only 714 judges in the lower courts and they handle over a million cases.' 'On an average, 1,480 judges would be required to clear the backlog in one year,' said and Justice [S.B.] Sinha [of the Supreme Court].'" More (Calcutta Telegraph 09.18.2005). Comment. A modest proposal: outsource cases to American judges. Fair is fair.

    High Court judge bids adieu in India. "Quoting the words of Lord Chancellor of England -- that the criterion for selecting a judge is that he should be a gentleman and it will do no harm if he knows a bit of law, the Chief Justice of Madras High Court, Markandey Katju said: 'That is what I also believe.' Stating that any person, who had put in at least 20 years of practice in the Bar is expected to have learnt the basics of law, he said, 'The word, gentleman, which includes integrity, courteousness and human behaviour is the main criterion for becoming a High Court Judge.'" More (The Hindu 09.17.2005).

   More on ex-judge charged with rape in commission of bribery. "The rape and bribery [trial] of former Magistrate Judge Reuben Galvan...begins Monday. ...Galvan, 43, faces charges of second-degree criminal sexual penetration in the commission of a felony, or in the alternative, third-degree criminal sexual penetration; demanding or receiving a bribe by a public officer or employee, a third-degree felony; fourth-degree false imprisonment; and misdemeanor battery...The charges against Galvan stem from allegations that he raped and solicited a bribe from a Las Cruces woman...His first trial, during which he faced only the rape and bribery charges, ended with a hung jury...." More (Las Cruces Sun-News 09.18.2005).

    Another football player becomes a judge. "When Gov. Arnold Schwarzenegger recommended Judge Morrison England as a California Supreme Court candidate, it should have, once and for all, debunked the myth about football lineman...'At every school, they're generally better students than defensive linemen,' said Chester Caddas, England's coach at Pacific. 'Each play calls for a different blocking arrangement and they make those calls at the line of scrimmage.'" More (Record.Net 09.18.2005). Comment. Minnesota Supreme Court Justice Alan Page, a Hall of Famer with the Minnesota Vikings, was a defensive tackle. I'd be surprised if Morrison England turns out to be as good a judge as Judge Page, who many believe is the best judge on the Minnesota court. BTW, Roscoe Pound, the famous Dean of Harvard Law School from 1916 to 1936, not only was a former Justice of the Supreme Court of Nebraska but was a pretty damn good tackle -- after he was a judge rather than before.

    Corruption case filed against Nepalese judge is a first. "In the first-ever case against a sitting judge, the Judicial Council (JC) has decided to file corruption charges against Pyuthan District Court Judge Birendra Kumar Karna, newspaper reports said Sunday. The Kathmandu Post quoted a source as saying that King Gyanendra has already accepted the JC decision...." More (KantipurOnline 09.18.2005).

    President Bush announces new choice to replace O'Connor on Court. "In a press conference Monday, President Bush named a 72-day-old gestating fetus as his nominee to fill the Supreme Court seat that opened following the death of Chief Justice William Rehnquist...." More (The Onion 09.16.2005). My crim-law prof, Alan Morten Dershowitz, is quoted in the report: "With its precocious intelligence and adorable pocket size, the fetus could very well prove to be the moderate 'consensus candidate' many on Capitol Hill have hoped for. And with its confirmation to a lifetime appointment on the bench, Bush ensures that his presidential legacy will last until about 2089." Further reading: The Whirling Der(vi)sh-owitz Blogs-Blabs on about Roberts.

    Judge allegedly manhandles staffer, staffers strike. "Work at Tis Hazari courts today came to a standstill following a strike by the court staff to protest a judge allegedly manhandling one of their colleagues. Yesterday, Additional Sessions Judge S P Malik had allegedly manhandled a staff in the copying branch after reportedly catching him accepting bribe, sources said...." More (IndLaw 09.17.2005). Comment. The "court staffers" in question are "unionized." Here in the U.S. court staffers typically serve "at the pleasure of the court" -- sometimes literally.

    Judgeship too good to pass up. "Although she is happy with her current job, [Delaware] Republican state Attorney General M. Jane Brady said Friday she couldn't pass up an opportunity to apply for a vacant Superior Court judgeship...." More (Newszap 09.16.2005). Comment. Whenever members of the judiciary lobby for pay raises, they are often heard to say that pay is so low that good judges are quitting right & left. But whenever there's an opening, top attorneys typically line up seeking appointment. Ms. Brady, who has a pretty good job already, feels a judgeship would be too good to pass up. She's quoted as saying, "I have a job in law that I love. But judicial openings don't come up often. It might be now or never." Which reminds me of a conversation I overheard at one of the Harvard Law School mixers in the mid-1960's. Typically, busloads & cabs full of young women from area colleges would show up & we guys (95% of my class was male) had a nice thing going. At one point, midway through one such mixer, I heard a young babe of 19 or so say to another, who wanted to leave early, "No, this might be my last chance." Or, as Ms. Brady, who is 54, not 19, puts it, "It might be now or never." Which in turn reminds me of the great Elvis hit. Further reading: Judith Richards Hope, The Women of 1964: Paving the Way, Harvard Journal of Law & Gender (Vol. 28, Spring 2005).

    Special Rapporteur on Judicial Independence. "The Special Rapporteur on the independence of judges and lawyers of the United Nations Commission on Human Rights, Mr. Leandro Despouy, will visit two countries in Central Asia, Kyrgyzstan from 18 to 24 September and Tajikistan from 25 September to 1 October 2005...." More (Relief Web 09.16.2005). Comment. We hope the good rapporteur will have a fine time in Kyrgyzstan & Tajikistan. We understand the night life in both countries is outstanding, even better than in St. Paul, Minnesota.

    Feds seek to retry Mississippi judges after hung jury. "Federal prosecutors will retry an attorney and two former judges on bribery charges, officials said Friday. After a three-month trial, a federal jury on Aug. 12 cleared state Supreme Court Justice Oliver Diaz Jr. of all charges but couldn't reach a decision on some charges against Biloxi lawyer Paul Minor and the former Gulf Coast judges, Wes Teel and John Whitfield...." A motion by Minor to dismiss the remaining charges is pending. More (Washington Post 09.16.2005). Comment. We're concerned about the increasing federalization of the criminal law and the increasing federal-regulation-through-prosecution of local government & politics. Click here for more.

    Judge to be tried for felony leaving the scene of accident. "The trial dates for Pike County [ARK] District Court Judge Jim Bob Steel will be Dec. 15-16 in the Howard County Circuit Court after he recently pleaded innocent to a felony charge for leaving the scene of an accident...He is charged with leaving the scene of an accident that involved a personal injury, a Class D felony that carries a potential sentence of up to six years in prison and a maximum fine of $10,000. He is also charged with a misdemeanor for driving left of center...." More (Texarkana Gazette 09.16.2005).

    Battle wages on Boston fed judge's plan to up minority jurors. On 09.01.2005 we noted that U.S. District Court Judge Nancy Gertner in Boston had "ordered that jury summonses returned from outdated addresses in minority reissued to the same zip codes. Usually they are reissued throughout eastern Massachusetts at random, making it less likely that minorities would end up on the jury...." The judge issued her ruling in connection with a capital muder trial of two Black men in an attempt to reduce the likelihood they are tried by jury with no minority members. We commented that we thought the technique ought to be used with respect to all jury summonses. Now the U.S. Attorney has obtained an emergency stay from the Circuit Court, and my law school classmate, Chief Judge William Young has asked to file a brief on the merits. He already has said that he believed Gertner had the authority to rule as she did and that he is naming a five-judge panel to consider the issues raised by Gertner's ruling and possibly revise the court's permanent plan for selection. More (Boston Globe 09.16.2005).

    Ralph Nader on Roberts hearing. "The legal literature and reporting are replete with examples of large corporate law firms overbilling their clients. They cheat their clients three different ways. First they charge for more hours than they actually work. Second they deliberately overlawyer, performing and billing for unnecessary tasks including using costly partners and associates for ministerial or duplicative work that can be done by secretarial labor or paralegals. Third, they pad their expenses with outrageous markups...Judge Roberts should [have been] asked about his former firm's billing practices. Then asked about his own billing practices and whether they differ in any appreciable way. Ethical standards and character reveal themselves in billing practices writ large or writ small. Cheating and stealing come in many formats...." From John Roberts and the Unasked Questions of Corporate Power (Harvard Law Record 09.15.2005).

    The Whirling Der(vi)sh-owitz Blogs-Blabs on about Roberts. My first-year crim-law teacher at HLS, Mort Dershowitz, offers a number of predictions about Roberts as C.J. in his blog at Huffington Post, including "He will not overrule Roe v. Wade, though he will not extend it beyond current Supreme Court holdings." What I Have Learned From Listening to Judge Roberts (09.15.2005). Comment. We don't always agree with our always-provocative former prof but think he's pretty much right-on in his predictions. We would add this: Justice Holmes perhaps owes more than a bit of his fame to his Harvard Law "publicists," Felix Frankfurter first among them. John Roberts is student enough of the Holmes myth (to which we subscribe) that he will never do anything that will alienate the Harvard Law judicial-legend-building machine.

    Roberts on citing foreign law. "Judges can cite anything they want. What's less democratic about giving a nod to a foreign judge than to William Shakespeare? As long as judges are clear about the limited weight they're giving to foreign law -- as they've so far bent over backward to do -- scanning the globe for a new idea, or empirical evidence to support an old one, seems pretty common-sensical...." That's Emily Bazelon's view on the issue of citing foreign law, which we've focused on a number of times. Roberts said it isn't his view. Bazelon speculates on why he said this. She thinks it was opportunism on his part. More (Slate 09.15.2005). Comment. We think she's right.

    Man convicted of plot to blow up courthouse. "A federal jury Thursday convicted a 67-year-old Chicago man [Gale Nettles] of plotting to blow up the downtown federal courthouse...Prosecutors said Nettles wanted to level the building at 219 S. Dearborn using the same kind of fertilizer used in the deadly Oklahoma City bombing...." More (Chicago Sun-Times 09.16.2005).

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