More about snipes

Photo credit:  Laem Pak Bia, Petchaburi, Thailand per Wikimedia Commons license.

Photo credit: Laem Pak Bia, Petchaburi, Thailand per Wikimedia Commons license.

thusbloggedanderson commented in response to my earlier post that:  “Snipes aren’t just rare; they don’t exist. Habeas review is not a snipe hunt. (More like looking for a 4-leaf clover!)”

While I may agree with the sentiment, snipes do exist.   Pictured above is a Pin-tailed Snipe (that I presume claims to be actually innocent).  For more on the wily Pin-tailed Snipe, see the ABA Blog (American Birding Association).


A new and shocking revelation on going to Texas

I have it on very good authority that my earlier post about going to Texas was slightly incorrect.  It turns out, however, that things are even worse than I had thought.

My confidential informant advises that:

All of the men’s toilets are in Arkansas.  The women have to go to the Texas side to do their business.  Also, and this is embarrassing in 2013 (but is illustrative of the past), the women’s toilets in the building have urinals plus toilets.  We have been told that in 1933-35, when the courthouse was constructed, no one expected women to come to the courthouse or if they did, stay long.

I am speechless.


Get rid of diversity jurisdiction

Conservatives in Congress want to downsize government including the federal judiciary.  Most particularly, these folks want to get the federal judiciary out of the daily lives of our citizens, and they also want to empower the states to function without federal judges mucking with state law.  If the conservatives who are behind this movement are intellectually honest then there is a real easy way to begin accomplishing that task.  Moreover, this easy way won’t gut the ability of the federal judiciary to function in those spheres that even  conservatives agree are proper.

Congress could do away with diversity jurisdiction.  Sure, that would mean that some corporations would  find themselves in “hell holes” where judges and juries are overly sympathetic to plaintiffs.  On the other hand, there are many other jurisdictions that are not particularly plaintiff-friendly.  For example, Nebraska doesn’t allow punitive damages for plaintiffs in most cases.

Diversity jurisdiction for the federal courts once made sense.  No so anymore.  I would be happy to trade diversity jurisdiction for an end to (or even a lessening of) judicial sequestration.  And, even if that trade-off were not possible, ending diversity jurisdiction would allow the federal judiciary to concentrate its reduced resources on federal questions that really matter.*  This is a “conservative” idea that intellectually honest legislators of all stripes could embrace.

Any takers?


*Why in the hell should I know the slightest thing about the comparative negligence law of Nebraska?

1982 Dodge Rampage–not only ugly, but a prime example of Detroit gone mad

Although I have not decided whether the nomination is eligible for the contest, because the career law clerk’s submission belongs to her mother and because the clerk did not submit an actual photo of the actual truck, I am pleased to post this ugly truck aficionado’s musings about a really ugly truck together with a few photos of what a 1982 Dodge Rampage looks like:

I grew up on a farm in Kansas. We had many ugly trucks over the years. My 87-year old mother, who still lives on the farm, has a 1982 Dodge Rampage (sort of a half-truck, half-car, akin to a Chevy El Camino), that she relies on for hauling stuff to the dump. I know my ugly trucks.

Incidentally, here’s how Car Lust describes the Rampage:

The list of cars on which the appellation “Rampage” (RAMPAGE!) would be more appropriate would be a list of virtually every car ever made. Light, insubstantial, generally shoddily made, and with little power or hauling capacity, the Rampage was as slow as it was strange. As cars go, the Rampage was more Quasimodo than Frankenstein monster; about as intimidating as a sock monkey.


Photo credit:  Car Lust and a dump in South Carolina.

rampage1 (1)


Civil settlements are for sissies

In a previous post, I wrote about the death of civil jury trials.   I noted that rational people frequently opt for mediation or some other form of dispute resolution in lieu of proceeding to federal court.  The advantages of these procedures are that they are more predictable and less expensive than federal litigation.

Let’s say, however, that a complaint has been filed in federal court.  We, too, offer mediation by referring the parties to an outside mediator.  We also offer the services of our magistrate judges to hold settlement conferences.  The magistrate judge I work with most frequently is Judge Cheryl Zwart.  She is particularly good at settling civil cases.  A former partner in a highly respected litigation firm, who cut her teeth representing railroads in personal injury cases, Judge Zwart is smart, tough as a boot and has “been there and done that.”  She has a superb track record of settling cases, and the lawyers rave to me about her deft manner in doing so.  (See the post script.)

Judge Zwart

Judge Zwart

Some lawyers, however, never want to settle.  Indeed, an old-time trial lawyer once told me that “settlements are for sissies.”   For those lawyers, most of the time, we do not pressure them to engage in alternative forms of dispute resolution.  We understand that mediation and the like may impose unnecessary expenses on the parties, that, in certain situations, alternative dispute mechanisms can undermine the relationship between client and counsel, and, most importantly, we understand that there is a Seventh Amendment right to a jury trial.

In short, if you are one of those lawyers who think that “settlements are for sissies,” let the court and your opponent know that at the front end.  If you do and you mean it, we won’t hassle you.  Just don’t be mad when the jury renders a goofy result.


PS  True story.  The District of Nebraska has a court facility near the Colorado border at North Platte, Nebraska.  The last time I tried a jury case out there, I had a heart attack.  Fast forward to this year.  Faced with good trial lawyers, with a mind-set that settlements are for sissies, I was preparing to go to North Platte to try a grudge match that had been bumping along in our court for years.  At the last moment, and after eight hours or so of work,  Judge Zwart was able to help the lawyers reach a settlement.  I am told that she introduced the settlement conference this way, “Last time Judge Kopf conducted a trial in North Platte, he had a heart attack.  I am not going to let you kill him, so we are going to settle this thing, capisce?”  (At example 3, the Urban Dictionary illustrates Judge Zwart’s meaning of “capisce.”  That is,  “[o]ften used by popular Mafioso bosses like John ‘Dapper Don’ Gotti, ‘” the word is properly used like this: “You fuckin piece of shit,you come around here again ya dead, capisce?!'”)  I thus avoided the death trap that is North Platte.

Equitable tolling and an ugly truck

I just received another photo for submission in the ugly federal judicial truck contest.   It comes from a clerk to a federal appellate judge.  But, there is a huge problem.  The nomination first presents several convincing reasons why the truck should win, but then it drops a bombshell:

My truck is a gray 1996 Toyota Tacoma 4×2. My brother and I purchased the truck on the used market in 1998, when we were juniors in high school. At that time, we did not notice that the truck’s title had a “Salvaged” notation on it (we later learned that in California, “Salvaged” means the vehicle was fixed after sustaining structural damage).

The truck made numerous trips in California, while I finished college in Southern California and visited my family in the San Francisco area. As the miles piled up, so did the wear and tear. And I was a poor college kid, then a recent graduate, and then a law school student — I wanted to spend as little as possible on maintenance.

The truck’s passenger side panel was badly warped out of shape when I passed a bit too close to a parked bicycle’s handlebars. Never fixed.

The rear bumper accidentally crashed into a high curbing and was permanently bent downwards (see attached photo).  Never fixed.

The cloth upholstery in the bench seat ripped, exposing seat foam. Never fixed.

The exterior locking mechanism in the driver’s door broke, preventing the door from being locked or unlocked from the outside. Never fixed. Instead, I made do by unlocking the passenger door, reaching across the bench seat to unlock the driver’s door from the inside, and then walking back around to the driver’s side. On occasion, my long-suffering girlfriend would reach across and unlock the driver’s door for me.

The headlights burnt out. Those were fixed — but replacing the headlights in a 1996 Tacoma requires removing the front grille. I removed the grille but never got around to replacing it (absence of grille visible in photo).

All that being said, this truck assisted with more than 15 apartment moves (for myself and friends) as well as numerous furniture pickups, Ikea runs, and other tasks. It safely transported me to high school, college, post-college jobs, law school, my first clerkship, and my first “real” lawyer job. It was still running approximately 180,000 miles later (the odometer broke somewhere around 150,000).

Sadly, I no longer own the truck — I sold it in April 2012 because the insurance was just too costly in light of its value. I fear that the sale may disqualify it from consideration for the contest, but I wonder if there may be some form of equitable tolling available?

I have given this problem sober consideration.  In light of the Supreme Court’s decision this week in McQuiggin v. PerkinsI will liberally construe the submission as a claim of “actual innocence.”  Therefore, I will look to the merits of the claim.   Finding the claim sufficient at this stage of initial review, and believing that fair is fair, I now post the photo of this exquisitely nasty truck.  Again, I make no determination, yet, as to the ultimate winner (of something that is fast beginning to look like a red-neck version of Hunger Games).

The Japanese have made some of the most wonderfully awful pickups!  RGK

The Japanese have made some of the most wonderfully awful pickups! RGK


The high cost of snipe hunts

Emily Bazelon is a senior editor at Slate, a contributing writer at the New York Times Magazine, and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She graduated from Yale law school and served as a law clerk on the U.S. Court of Appeals for the 1st Circuit.  Smart and talented are insufficient words to describe Ms. Bazelon.

Yesterday, Ms. Bazelon wrote a piece for Slate entitled,  An Innocent Extension, The Supreme Court moves to protect the innocent, and Justice Scalia fumes (May 28, 2013, at 3:58 PM).  In it, she goes after Justice Scalia for his scathing dissent in McQuiggin v. Perkins.  In that case (which did not involve the death penalty), a closely divided Court concluded that a proper showing of “actual innocence” is sufficient to circumvent the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations even if the prisoner made no effort to be diligent.  (Opinion here.)

Excluding death penalty cases, Ms. Bazelon wrote that only .45% of the some 16,000 federal habeas cases filed annually resulted in granting relief to the prisoner.  Then, Ms. Bazelon added in reference to the command of Perkins for additional review:  “Yes, reading habeas petitions takes some time, and reading more of them takes more time.  But that’s just part of the job of the courts.”

I take no position McQuiggin v. Perkins or most of what Ms. Bazelon writes about that case.  Nor do I express any opinion whatever on AEDPA or legislative efforts to change it.  But, as someone who has handled hundreds of habeas corpus cases (including more than my share of death penalty cases) in this court as well as in New York and Arkansas, I respectfully suggest Ms. Bazelon missed a policy question that is worthy of serious reflection.

Enormous federal resources are spent dealing with habeas corpus cases.   See, for example, my earlier post on pro se law clerks and the pro se docket.  The costs to the states are large as well.  As a matter of policy, if less than one-half of one percent of those non-death penalty cases warrant relief, should we hail Supreme Court decisions that have the practical impact of compelling us to spend even more money hunting for snipes?


A very ugly truck

I am excited.  Dare I say, aroused.

I just received the first submission for the ugly truck contest.  Submitted by a career law clerk for a magistrate judge, the following nomination language came with it:

My husband’s father gifted the truck to us last year. It formerly belonged to his Grandfather and is fondly referred to as “Big Red.” The F-150 has nice lines and an obvious dose of Americana. But don’t let those bits of beauty fool you, this truck has rust, missing paint (see hood line), and purple tint. I was in first grade when this truck rolled off the lines, so I assume that in the early nineties, purple tint was acceptable. The tint is now bubbling off the windows. Big Red does not have A/C, and though my husband denies it, I am positive that some rodent has eaten into the exhaust line. For this reason, any rides in Big Red must be windows-open adventures, and even with the windows open, one comes out reeking of exhaust.

 We use this truck to perform tasks our friends pay other people to complete: hauling mulch, taking trash to the dump, dropping metal at the scrap yard, and moving members of our families to various homes. Our dog Molly particularly loves the scrap yard, where the metal-weighing lady gives her treats. In sum, our ugly, smelly truck makes us feel like self-sufficient rural people, when in fact we live in the suburbs and shop at Trader Joe’s.

Because I am so taken with this heart-felt submission, I have decided to publish the photo, without intending to declare a winner, however.  Having done so, I will offer a grand prize (yet to be determined) to the ultimate winner.  But for now enjoy!

My God!  Its four wheel drive with great rims!

My God! Its four-wheel drive with great rims!


The gracious, dear and strawberry tea

"Milan" is a from the Slavic element mil meaning "gracious, dear."   Milan's dad is a Czech via Canada.  Milan's dad and our daughter met in Kuwait.

M’s name is derived from the Slavic element “mil” meaning “gracious, dear.” His dad is a Czech via Canada. M.’s dad and our daughter met in Kuwait.

Our daughter (the bartender in an earlier post) and her husband live and teach school in Shekou (a part of Shenzhen), China, right across the bay from Hong Kong.  They have two children, P. and M.  If we are lucky, we see P. and her brother M. once a year, so video and photos of the children plus Skype have become staples in our lives.

In the photo, the squirmy little boy on the Article III lap is M.  I tried to take his cap, but he was having none of it.

As for P., she recently appeared in the school’s charity fund-raiser for less fortunate Chinese children.  It was called: “Strawberry tea.”   The video of P. and her mates appears below.

P., who is quite tall but only three, is the very serious western child kneeling next to the Chinese child (who throws a fit).  The three-year old kids were supposed to kneel, and the older children stand.

Some things are more important than others.


Reducing law school from three to two years is lunacy

There is a movement to reduce law school education from three years to two years.  That is crazy.  If anything, we should extend law school for two additional years and divide that additional education into two skill tracks.  One track would be “office practice” and the other “trial practice.”   These two years would emphasize learning by doing–experience over doctrine.  The great need for legal aid could, in some small part, be addressed by such additional training.

Photo credit:  David Ortez per Creative Commons license.

Photo credit: David Ortez per Creative Commons license.

I am not insensitive to the enormous financial burdens that law students undertake.  Additionally, I am sensitive to the mounting pressure on law schools to address the financial concerns of their students while also trying to find the money to maintain credible graduate educational programs.

The foregoing said, I am far more concerned with the quality of the lawyers we turn out.  For Christ’s sake, kids right out of school are out there now charging real people real money.  The great shame of the profession and the legal academy is that we have always allowed young law school graduates to go out and practice law with virtually no experience.

The competence of young lawyers fresh out of school is middling at best, and, frequently, abysmal.  It will be far worse if the training is reduced.  Truly proficient lawyers should be our goal.  If that is the goal, more rather than less time should be required.


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