A beautiful book for the briefcase

Until today, I know of no collection of essays on the profession and the federal courts that merits mention. That drought has now been shattered with the publication of William Domnarski, SWIMMING IN DEEP WATER LAWYERS, JUDGES, AND OUR TROUBLED LEGAL PROFESSION, American Bar Association (2014). This beautiful book of essays should find a place in the briefcase of every federal practitioner.

Before I get to Bill, and the book, I want to concentrate on the form.  (Judges are like that.) This is a collection of essays. That is important, very important.  The author begins the preface with this keen observation:

My conceit is that it is with the essay, sometimes general and sometimes
familiar, that we can get closest to understanding the practice of law and,
by extension, the legal profession. Autobiography, biography, memoir, social
science studies, legal academic writing, and journalism have all contributed
to a rich literature that presents the practice of law and the legal profession,
but invariably individual texts are limited because they respectively explore
only parts of the larger whole. This is best seen in the vast literature of what
can be called the lawyer’s life. Essays that draw on the individual studies
in the different disciplines and genres, on the other hand, can cover vastly
more territory and can provide, perhaps, the only chance at understand‑
ing the issues and even adventures that sketch the lawyer’s life, with the
further byproduct from this that the reader better understands the broader
legal profession.

If you doubt the power of essay, you haven’t read Edward O. Wilson’s Letters to a Young Scientista collection of letters (essays) that have influenced the lives of thousands and thousands of scientists both young and old.  Although different in tone, SWIMMING IN DEEP WATER is that kind of book for lawyers.

WilliamDomnarskiWho is William Domnarski?  Well, he is a lawyer (a real lawyer, by the way).  He also holds a Ph.D., from the University of California, in English literature. He is a prolific author. See here (click on books, essays and articles.) He is highly regarded as evidenced by the fact that he is currently under contract with the Oxford University Press to write a judicial biography of Richard Posner.

Now, to the book.

There are fifty essays alphabetically listed by title. There are forty‑one essays about lawyers, which include three about the effect of certain judges
on lawyers.  They can be arranged into ten groups for the reader looking to pursue
a particular theme or subject: (1) the profession as organized, (2) law‑
yerly tasks, (3) lawyer civility, (4) legal fees, (5) lawyer clothes and offices,
(6) reading and writing, (7) thinking like a lawyer, (8) lawyer arrogance,
(9) the nature of lawyering, and (10) lawyers and judicial unpleasantness.

There is even an essay on “Dressing for Success” discussing the way lawyers dress and what signals they are sending with their sartorial choices. Bill tells me that he wishes I would have written my post on women and courtroom attire earlier so he could have referred to it, but he holds his cards close to the vest on whether I would have liked his discussion of my failed attempt at humor. Bill is a tough guy, and he pulls no punches.

Importantly, there are also essays on judges.  Domnarski does not shrink from skewering judges. I like that about the book.  In one essay on judges entitled I am right because I say I am, the author introduces the subject of “black robe‑itis”:

Oddly enough, given the significance of the topic, almost nothing has
been written about the phenomenon of judicial ego and arrogance that
gets at its significance. We have all seen examples of both, yet commen‑
tators rarely take on the topic of these twin excrescences. For something
so important, there should be discussion, not in the courtroom of course,
where judges rule and would not allow it anyway, but in the general dis‑
course about the legal profession and the fair administration of justice.
We need not worry about the ethical rule keeping lawyers from criticiz‑
ing judges, which applies to lawyers criticizing judicial performance in
their pending matters. Besides, a discussion of judicial ego and arrogance
is not even criticism per se. It is just an exploration of the phenomenon
known as “black robe‑itis.”

Knowing that humor is the best antidote to arrogance, Bill writes:

There have been several formulations or definitions of black robe‑itis.
Many go to the idea that the disease, if we can call it that, allows judges
to let their own sense of self‑importance cloud their good judgment. More
define it as a phenomenon in which judges believe that their judicial appoint‑
ments have made them god‑like creatures unapproachable by mere humans.
An especially good formulation appears in what is known informally as
the federal judge song by a group of lawyers billing themselves as the Bar
and Grill singers. One apparently unhappy federal judge described the song
in an opinion as “a derisive ditty going around the courthouse” set to the
music of “Happy Together” by the Turtles. It captures the sensibility in
question nicely. We can sing along to “[i]magine me as God. I do/ I think
about it day and night./ It feels so right/ To be a federal district judge and
know that I’m/ Appointed forever.” The chorus is even better: “I’m a fed‑
eral judge/ And I’m smarter than you/ For all my life./ I can do whatever I
want to do/ For all my life.”*

The essay proceeds apace and it gets even better.  Now, I know I use bad words too much. I admit that. But, I fucking love this essay.  Hell, I fucking love this book.

RGK

 Late Addition:  You can hear the song here. (Thanks Mike A.)

 

 

5 responses

  1. RGK: Importantly, there are also essays on judges. Domnarski does not shrink from skewering judges. I like that about the book.

    Unlike the fawning lawyers your friend mentioned, I don’t just skewer judges … I slice, dice, and fricassee them. Maybe that’s why you still tolerate me. :)

    RGK: In one essay on judges entitled I am right because I say I am, the author introduces the subject of “black robe‑itis”:

    I respectfully submit my essay on the subject.

    Twenty years ago, conservative columnist Max Boot coined the term “gavelitis”:

    A judicial selection process that often results in bumbling candidates being chosen. [Anyone who doubts this should examine the Tent Circus.] A judicial oversight process that rarely punishes judges for even flagrant misconduct on the bench. Put those together, and what do you get? A breeding ground for a disease I call “gavelitis.”

    This dread disease can be caused by wielding a gavel in the line of duty, and its symptoms include advanced pomposity, pathological sanctimoniousness, congenital self-importance, and aggravated eccentricity. Judges suffering from this disease grow so arrogant, so out of touch, so remote from everyday life that they think that the normal rules of good behavior don’t apply to
    them.
    [Exhibit A: Ex-Chief Judge Edward J. Nottingham]

    It’s not hard to understand how judges can fall prey to this malady. After all, when you wear a black robe, everyone—staff, litigants, even haughty maitre d’s—bow and scrape before you. All your witticisms are suddenly hilarious, all your observations astute, all your suggestions readily adopted. Your fellow man invariably addresses you as “Your Honor” or “Judge.” Nobody’s ever mean to you and if they are, you can lock them up.

    You think: How unusual . . . How wonderful . . . How fitting. That kind of obsequiousness is heady stuff in our rude, egalitarian society.

    Max Boot, Out of Order: Arrogance, Corruption, and Incompetence on the Bench 25-6 (Basic Books, 1998) (emphasis and commentary added).

    It is part of a larger problem. As novelist Samuel Butler wrote, “Authority intoxicates, And makes mere sots of magistrates; The fumes of it invade the brain, And make men giddy, proud and vain.” Samuel Butler, Miscellaneous Thoughts, as reprinted in, The Poetical Works of Samuel Butler 285 (ed. R. B. Johnson) (Geo. Bell & Sons 1893). These noxious fumes powered the Chinese tanks in Tienanmen Square and the ‘showers’ of Bergen-Belsen, and all too-often, drive American gavels today.

    Why is this phenomenon permitted to occur? Peer pressure.

    In 18th century Great Britain, the court of King’s Bench could remove a judge for misconduct, and Parliament could overturn manifestly unjust judgments. And for the most part, English judges were like Caesar’s wife: above reproach.

    Contrast that with the fetid sewer of the American federal bench, where accountability is notable only by its absence. The system of federal judicial discipline is literally designed to fail. As one of the nation’s most prominent scholars on judicial ethics, Professor Anthony D’Amato of Northwestern, explains:

    No matter what the profession, any charge that a fellow professional is guilty of malpractice is a prima facie invitation to other professionals to retreat to a guild mentality, denying that the infraction took place. The impetus to cover up is not primarily due to friendship toward the accused but rather to a general perception that disclosure would lead to public disrespect of the profession as a whole. … We perhaps demand too much of human nature if we expect judges to be unconcerned with the loss of public prestige that results from admitting that cases of serious judicial misconduct are not extraordinarily rare.

    Anthony D’Amato, Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Mich. L.Rev. 609, 609-10 (1990) available at http://anthonydamato.law.northwestern.edu/Adobefiles/A90n.pdf. in the case of the Ninth Circus cover-up of the misconduct of Judge Real, the ever-candid Chief Judge Alex Kozinski elaborates:

    Disciplining our colleagues is a delicate and uncomfortable task, not merely because those accused of misconduct are often men and women we know and admire. It is also uncomfortable because we tend to empathize with the accused, whose conduct might not be all that different from what we have done-or been tempted to do-in a moment of weakness or thoughtlessness. And, of course, there is the nettlesome prospect of having to confront judges we’ve condemned when we see them at a judicial conference, committee meeting, judicial education program or some such event.

    In re Complaint of Judicial Misconduct, 425 F.3d 1179, 1200 (9th Cir. 2005) (Kozinski, J., dissenting). As Senior Judge Kane of the District of Colorado related to the Washington Post, the reason is obvious, as one of his colleagues told him: “’John, think about it. The next time it could be you or me. We’ve got to stick together.’ ” Ronald Rotunda, The Courts Need This Watchdog, Wash. Post, Dec. 21, 2006, A-29; see Cleavinger v. Saxner, 474 U.S. 193, 204 (1985) (re: guild favoritism). In Judge Posner’s brutally candid parlance, it is Bayesian decision theory in action. See Richard A. Posner, How Judges Think (Harv. U. Press 2008).

    Three kinds of judges make up 99% of the federal bench: the Jerry Sanduskys who sodomize the Constitution in the shower, the Mike McQuearys who watch and do nothing, and the Joe Paternos who actively cover up scandals. See e.g., Heber Taylor, Judicial Discipline Needs a Full Probe, Galveston Daily News, May 15, 2009 (Fifth Circuit caught lying to the public regarding the scandal involving Judge Kent). Honest services mail fraud, aiding and abetting … but what’s a few felonies among judges? This pervasive “guild mentality”–what Justice Breyer describes as “undue ‘guild favoritism,’” Stephen Breyer, et al., Implementation of the Judicial Conduct and Disability Act of 1980: A Report to the Chief Justice (Sept. 2006) at 1–leads to some comical results. As Justice Chase—yes, that Justice Chase, the one who deserved to be impeached—observed:

    There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it.

    Calder v. Bull, 3 U.S. 386, 388 (1798) (emphasis added).

    Everyone agrees that “no man has a right to be judge in his own cause,” Thomas Hobbes, Leviathan 172 (A.R. Walter ed., Cambridge Press 1904) (1651), as it violates the most basic principles of natural justice. Even in Putin’s Russia! Dmitry Davydenko, On Dispute Resolution in Controlled Arbitration Courts, Russian Law Online (undated), at http://www.russianlawonline.com/content/dispute-resolution-controlled-arbitration-courts (copy of pdf on file) (“the Presidium will most likely refuse to issue the writ of execution on the basis of its contradiction to fundamental principles of Russian law, that is that “no one should be judge in his own cause” or the principle of impartiality of arbitral tribunals…”). But in America’s kangaroo courts (I will have to apologize to the kangaroos for saying this the next time I am in Australia, as the comparison is defamatory to kangaroos), your mileage WILL vary.

    It is not enough to merely lament judicial arrogance. The Framers actually supplied a remedy–the good behavior clause, which was intended to be enforced by aggrieved litigants–but judges are too dishonest, arrogant, and besotted by power to implement it.

    I once told a federal judge that we are the face of tyranny, and promptly received a visit from her Praetorian Guard. Power minus accountability ALWAYS precipitates tyranny. As Lord Acton observed, it isn’t a matter of if but when. That is the foul harvest of “black-robe-itis.”

    • As a general rule, I scrupulously avoid telling judges what I think. Instead, I focus on telling them what the greatest minds in history thought, as it tends to keep me out of trouble, with the added advantage of making me appear more literate. Allow me to illustrate:

      “As Thucidides observes,[1] Mankind resent Injustice in a Magistrate from whom they expect Protection more than open Violence or Robbery in the High-ways.” Peter Hughes, Georgicum: Or, A Supplement to the Mirror of Justices 31 (1716).

      The preferred cure for “gavelitis” is to remove the infected judge from the bench. King Hammurabi of Babylon initiated a one-strike rule, wherein the judge who issued a corrupt ruling was fined twelve times the amount of the judgment imposed, and forever barred from trying future cases. Codex Hammurabi § 5. King Alfred of Saxony forever altered the concept of “at will” employment, reportedly hanging forty-four judges in one year. Georgicum at 6. But perhaps the most of an innovative antidote to judicial corruption ever devised came from an obscure Persian vassal lord:

      [The judge Sisamnes], being of the number of the royal judges, had taken money to give an unrighteous sentence. Therefore [King] Cambyses slew and flayed Sisamnes, and cutting his skin into strips, stretched them across the seat of the throne whereon he had been wont to sit when he heard causes. Having done so Cambyses appointed the son of Sisamnes to be judge in his father’s [courtroom], and bade him to never forget in what way his seat was cushioned.

      Herodotus, Histories, Bk. V, § 26 (tr. George Rawlinson, et al.) (D. Appleton & Co. 1889), Vol. III at 192.

      While the British hung their fair share of judges over the years—Chief Justice Robert Tresilian was hanged for issuance of executive-friendly decisions,[2] and the famed Sir Francis Bacon was removed from his office for corruption[3]—their eventual solution to this problem, which our Framers incorporated almost in toto into the Constitution, was to take as much power as possible out of the hands of judges, and hold judges personally accountable for acts of misconduct. An integral part of this scheme was the grant of judicial sinecures quamdiu se bene gesserint, Act of Settlement [1701], 12 & 13 Will. 3, c. 2, §3, or in plain English, conditioned on maintenance of “good Behaviour.” U.S. Const. art. III, § 1. In essence, to retain his job, the judge had to do his job and, as was the case in England for centuries prior to the Revolution, any subject injured by willful misconduct of any official of the Crown invested with good behavior tenure had standing to remove him from office.

      Of course, our British ancestors’ civilised remedies presuppose governance by the rule of law, for even in Britain, even the King “never fails to comply with the judgment of his court.” Marbury v. Madison, 5 U.S. 137, 163 (1803). But as John Locke observes, “[w]here-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate.” John Locke, Second Treatise of Civil Government § 202 (1690). Whenever anyone crosses that line from judge to tyrant, s/he literally ceases to be a judge and agent of the State.

      So, what are we to do with the gavelitis-infected judge, if the law provides no remedy for his depredations?

      The absolute right to assassinate a tyrant in defense of lives and liberties has been recognized by Anglo-American law since before Magna Carta,[4] and in civilized societies for many centuries before that. Cicero asserted that it was “morally right to kill” tyrants, as they are “monsters … in human form [who] should be cut off from … the common body of humanity.” 3 Marcus Tullius Cicero, De Officiis, 299 (T. Page and W. Rouse, ed., W. Miller, trans., 1921) (~44 B.C.E.). Greek states, observes Xenophon, would “bestow great honour on him who kills a tyrant.” Xenophon, Hiero, A Dialogue on Royalty, reprinted in Xenophon’s Minor Works 55 (J.S. Watson, trans., 1898) (ca. 370 B.C.E.). Christian theologians since St. Augustine have consistently held that “what is done unjustly, is done unlawfully.” St. Augustine, City of God, Book XIX, Ch. 21 (J. Healey trans. 1610) (~415).

      This right to self-help is grounded in “the transcendent law of nature and of nature’s God,” The Federalist #43 (J. Madison)—an “inalienable” right, which no government may bestow or lawfully abridge. Declaration of Independence, para. 1 (U.S. 1776). When “men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.” N.H. Const. art. 3. Accordingly, “whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual,” id., art. 10, an aggrieved citizen may exercise his or her “natural right of resistance and self-preservation,” 1 Blackstone, Commentaries at 144, against an oppressor, for “[t]he doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.” N.H. Const. art. 10.

      In what may be the most important sentence ever written, Thomas Jefferson transformed this ancient right of Englishmen to remove a tyrant by any means necessary[5] into a duty, owed to our fellow Americans: “[W]hen a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” Declaration of Independence at para. 2.. John Adams adds that “open, avowed resistance by arms, against usurpation and lawless violence, is not rebellion by the law of God or the land.” John Adams, Novanglus No. 5, reprinted in, John Adams and Jonathan Sewall, Novanglus and Massachusettensis 45 (1819) (1774). The tyrant can find no shelter in the arms of the law.[6]

      As we all should recall from law school, murder is “the unjustifiable killing of a human being with malice aforethought.” 18 U.S.C. § 1111(a). Conversely, the citizen has a duty, appurtenant to citizenship, to support and defend “the Constitution and laws of the United States of America against all enemies, foreign and domestic.” 8 C.F.R. § 337.1 (emphasis added), and when a gavelitis-infected judge substitutes his pleasure for an objective application of the controlling law in a case, and all remedies at law are foreclosed by illicit operation of judicial corruption, “it is such force alone, that puts him that uses it into a state of war, and makes it lawful to resist him.” Locke, Second Treatise at § 207. The tyrannical judge has not only declared open war on his victims, but has become a domestic enemy of our Constitution, for no “judicial officer can war against the Constitution without violating his undertaking to support it.” Cooper v. Aaron, 358 U.S. 1, 18 (1958).

      For this reason, in our legal system, where the right to an effective appeal has been irrevocably compromised by “undue guild favoritism,” Breyer, supra, it is now logically impossible to murder an offending federal judge. And for those judges who might find this conclusion problematic, the uncommonly eloquent slave-turned-Abolitionist Frederick Douglass offers this rebuttal:

      The only penetrable point of a tyrant is the fear of death. The outcry that they make, as to the danger of having their throats cut is because they deserve to have them cut.

      [7]

      I want you to think of this hypothetical discussion [I am actively attempting to change the status quo in our courts] in terms of sheer historical irony: the fact that Clarence Thomas, a Catholic, should come into ownership of the Bible of Frederick Douglass[8] … a man who would literally call for his assassination. And as has been noted, the next Catholic saint, Pope John Paul II, has already granted his advance blessing to such an act. If the bête noire of this blackest high comedy of courts could give it a blacker eye, it is tough to imagine how.

      You can see why I prefer to keep my personal opinions to myself. Even when quote the greatest minds in history, guilty judges like the black-robed clowns in the Tent Circus tend to get a little cross. :)

      ENDNOTES

      [1] Thucydides, 1 History of the Peloponnesian War 148 (William Smith trans. 1818) (ca. 410 B.C.) (“But mankind, it seemeth, resent the acts of injustice more deeply than the acts of violence.”)
      [2] As Baron John Campbell observed, “his fate seems to have excited little compassion, for he had shown himself ready to mete out like injustice to others, and he had extra-judicially pronounced opinions which, if acted upon, would have been for ever fatal to public liberty.” John Campbell, 1 The Lives of the Lord Chancellors and Keepers of the Great Seal of England 294 (2d ed. 1846).
      [3] Specifically, he was removed as Chancellor of England in 1621 upon confessing to having received financial assistance from claimants whose claims he had upheld. Georgicum at 14. Amusingly, Bacon roundly denounced the practice he confessed to indulging in in one of his famed essays. Francis Bacon, Essays LVI (Of Judicature) (1620).
      [4] Before Magna Carta, Bishop John of Salisbury wrote that “[t]o kill a tyrant is not merely lawful, but right and just … the law rightly takes arms against him who disarms the laws, and the public power rages in fury against him who strives to bring to nought the public force.” John of Salisbury, Policraticus, Bk. iii, ch. 15, reprinted in, The Statesman’s Book of John of Salisbury lxxiii (John Dickenson trans., Russell & Russell, 1963) (1159). Aquinas agreed, observing that a violent response to tyranny is not merely permissible, but predictable: “[M]en remove themselves from a tyrant as from cruel beasts, and to be subject to a tyrant seems the same as to be mauled by a cruel animal.” Thomas Aquinas, De Regimine Principum, in St. Thomas Aquinas: Political Writings 15 (R.W. Dyson trans., Cambridge Univ. Press 2002) (1267); see also, e.g., John Milton, The Tenure of Kings and Magistrates (1650).
      [5] “Anytime anyone is enslaved, or in any way deprived of his liberty, if that person is a human being, as far as I am concerned he is justified to resort to whatever methods necessary to bring about his liberty again.” Malcolm X, Speech (to the Oxford Debating Society), Dec. 3, 1964, audio at http://www.youtube.com/watch?v=fmrOOFJ12_I.
      [6] E.g., Paul Butler, By Any Means Necessary: Using Violence and Subversion to Change Unjust Law, 50 U.C.L.A. L. Rev. 721 (2003) (invoking the international law principle of “just war” to justify targeted assassination of public officials, including judges). Pope John Paul II (who will be canonized about a month from today) adds that any violent result of a struggle against an oppressive government is morally attributable “to the aggressor whose action brought it about.” Pope John Paul II, Evangelium Vitae, Sec. 55, Encyclical Letter on the Value and Inviolability of Human Life, Mar. 25, 1995.
      [7] Frederick Douglass, Letter (to James Redpath), Jun. 29, 1860, as reprinted in, Frederick Douglass: Selected Speeches and Writings 396 (Philip S. Foner, ed., Yuval Taylor, 1999) (original emphasis removed).
      [8] Mike McIntire, The Justice and the Magnate, N.Y. Times, Jun. 19, 2011, at A-1.

        • But I have established that your readership is not merely a stable of sycophants, and just getting a federal judge to read the above is, for me, a major coup.

          Still, it is a serious and eminently relevant question. Like pedophilia in Afghanistan, judicial tyranny is one of the judiciary’s most nefarious secrets. Professor D’Amato calls the lack of candor in opinion-writing (essential to the issuance of arbitrary and irregular decisions) the “dirtiest of [judicial] linen that should not be displayed in public.” D’Amato, Self-Regulation,89 Mich. L.R.at 619 (my emphasis). I call it what it is: Judges committing felonies.

          If appellate judges actually did their jobs, this problem would be an extraordinarily rare one. But as the late Judge Arnold admitted, we don’t have meaningful appellate review in federal courts,[1] and as Judge Gertner admitted here, in some classes of case, the matter is not even heard once! What do you do about willful judges who are inclined to play God? Do we give them the Sisamnes treatment? Do we acknowledge a justly-aggrieved litigant’s right to enforce natural law by any means necessary, including the assassination of judges’ grandchildren in retaliation for their willful acts of tyranny? If my solution–enforcement of the good behavior clause in a jury trial, in accordance with pre-existing English law–is not viable, what solution do YOU propose?

          Those of us who have been on the business end of judicial tyranny do not find this ditty (“We can sing along to “[i]magine me as God. I do/ I think about it day and night./ It feels so right/”) even the least bit funny. Judge Arnold had a solution, as do I (mine just happens to be embedded in the Constitution already). What is yours?

          ENDNOTE
          _____________________________
          [1] Perfunctory Justice: Overloaded Federal Judges Increasingly
          Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (per Judge Arnold, fifty federal appeals decided in two hours in Eighth Circuit); A paradigmatic example of this pervasive judicial sloth is Harrington v. Wilson, No. 06-1418 (10th Cir. Jun. 7. 2007) (withdrawn). Judge McConnell has a stellar reputation as a constitutional scholar, who has taught law at Harvard and Stanford, Mirela Turc, Judge Michael McConnell Speaks About the Ninth Amendment, The Observer (Case Western U.), Oct. 31, 2008 (biographical information), and it would beggar the imagination that he would not know that a matter dismissed for lack of jurisdiction cannot be dismissed ‘with prejudice’.

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