Two lawyers hold the heart of Nebraska in their hands

Harvey Perlman, Shawn Eichorst, and Bo Pelini are in the center of a figurative tornado. But first, you need context because what I am trying to convey is not obvious, and to some of you may be totally incomprehensible.

Let me start this way: Nebraska, geographically speaking, is huge, but there are very few people that inhabit the immense space. Indeed, there are literally more cows than people. The few people who live here are by and large the salt of the earth. And that comes from someone like me who was born and raised in Ohio and Florida even though I have lived here now for about 50 years.

The people of Nebraska love football and the Nebraska Huskers. “Love” is not too strong a word. When the stadium in Lincoln fills up it becomes the third largest city in the state. Nebraskans have packed that stadium to capacity for 51 years. No other school comes close to that record. The fans have reason to fill the stadium. Nebraska’s football record is impressive: three Heisman trophy winners, five national titles, 43 conference championships, 49 bowl appearances, and a national leader in academic All-Americans.

But what is truly remarkable to me is that Nebraska fans are not rabid partisans. They treat opponents and their supporters with genuine respect. Here is what a Georgia fan wrote in that regard:

They’re too nice to dislike. Nebraska fans have a national reputation for being among the classiest in college football, and for being especially gracious to opposing fans. Every Cornhusker fan with whom I ever have come into contact seemed to be a genuinely nice person. They’re polite to the point of being rude. I mean, really, people; we’re trying to hate y’all over here. Do you mind?

Here is what Jim Mora, the coach at UCLA, said after UCLA beat the hell out of the Huskers this year:

First of all I want to start by saying a very heartfelt thanks to the Athletic Director Shawn Eichorst, Head Coach Bo Pelini, to the Husker Nation, their fans, their students and their players for the compassion they showed us this week. I thought it was an incredible gesture they made here, and I think it kind of shows the class here at Nebraska. The fact that they would put a No. 36 decal on their helmets [for a Bruin player who was tragically killed], and they would have a moment of silence, and their student section cheered us when we took the field and encouraged us on, you just don’t find that at many places. It is just a true testament to the people here at Nebraska and how much they care about football. We are very, very appreciative about that.

So, there you have the context. I wish I could do better.

After Nebraska lost badly yesterday to Iowa, leaving the Huskers 8 and 4, there is a raging debate about whether our head football coach, Bo Pelini, should be fired. Pelini is a passionate coach known for recruiting kids of great character who graduate with something other than concussions, his loyalty to his players and coaches and his volcanic eruptions on the sidelines and at press conferences.

As Kenny Bell, the wide receiver, who will surely play on Sunday, said yesterday after the loss: “I would play for Bo Pelini against Satan himself and a team of demons at the gates of the underworld.” On the other hand, after Pelini got a penalty for swinging his hat too close to an official during yesterday’s game and erupted during the post-game press conference with a variety of provocative statements (e.g., an official’s call was “chickenshit”), one of the leading sports writers in Nebraska observed, “I just saw a man set himself on fire.”

So, it comes down to two men, Harvey Perlman, the Chancellor (head) of the University, and Shawn Eichorst, the athletic director, whether Coach Bo will be around next year. So what? Perlman and Eichorst are dealing with something that binds a tiny group of truly good people together in a common pursuit. That intangible connection may seem unimportant to others in bigger, more diverse places. But “each other” are two of the most important words in these High Plains.

Perlman and Eichorst are both very good lawyers. For some reason, that makes me feel better. Although I don’t know what they will decide, I believe they will do the right thing.


A really bad job that someone must do

At Thanksgiving dinner with Joan’s side of the family yesterday, I learned something. Because her family is very accomplished, I always learn something.

Today, Nebraska plays Iowa in football. The game is the last game of the year unless Nebraska makes it to a bowl game. The football stadium in Lincoln (where we live) will be packed. Over 90,000 people will attend. Although Joan and I have season tickets, we won’t attend. We will watch the game on TV ’cause I am such a fanatic that there are not enough psychotropic medications in the world to calm me down during the game. Since my attendance spoils it for other folks, we use the season tickets as gifts.

Sitting in our seats will by one of Joan’s sisters and her husband. While they too have season tickets, their children are in town and so the family will also use ours. Mary and Mark were at the doings last evening. Mary is a nurse, specializing in oncology. Mark is chief of gastroenterology at the medical school. He knows a lot about gastric fluids.

Our seats are a part of a block of seats handed downed from Joan’s dad to the seven siblings. So, Joan and her brothers and sisters have had sat in the south stadium for a long, long time. They know the people around their seats. One evidently is a hard drinker. And that brings to my to the reason for this post.

Some years back, Mark was in the south stadium. While you can’t legally drink at the stadium, that does not stop a lot of people. That day, the hard drinker was drinking hard. He got agitated at one point and stood up. Mark sensing disaster, stood up too. At that point, the man vomited a rather prolific amount of gastric fluids. Thankfully, the stream did not directly hit Mark, but landed where Mark had been sitting seconds earlier.

The man was down and out. Security came and helped him leave. A single person followed the security people. That fellow wore a hazmat suit. What followed amazed everyone in the section. In just a few seconds, the hazmat guy began and finished an expert clean up, making sure to put everything he picked up or used in a bio-hazard bag.

Mark thanked the fellow profusely, and remarked that the mess was pretty awful. The fellow responded nonchalantly, “It wasn’t bad at all. You should come with me to the student section.”  That, dear readers, is an example of a really bad job that someone must do.

Go Big Red (and sometimes yellow).



More thanks to give

Some of you may recall my post about my oldest daughter, the Divine Miss M. Today, she sent me a brief e-mail. She wished me a happy Thanksgiving. She also wrote, “if it weren’t for arseholes like you, drone pilots might be bored.” She then linked to an article entitled “Drone crew caught attempting to deliver smokes to prison inmates.” As you stuff your pie hole, the piece and related comments are worth a read.

I have much to give thanks for today. That especially includes drone pilots and the Divine Miss M.


Am I a conservative or am I an asshole?

Yesterday, with the Thanksgiving holiday almost upon us, I sentenced people to prison. One case involved a fellow convicted by a jury of schlepping a bunch of drugs. His criminal history score was VI. There was evidence that he had tried to tamper with witnesses. He was represented by a very good and dedicated lawyer. The offender has cancer, and there is absolutely no debate about that. There is nothing more the doctors can do for him. According to a respected specialist, there is a 2 out 3 chance that he will die within the year. His lawyer wanted me to vary downward to the statutory minimum of 240 months (20 years). Instead, I imposed a Guideline sentence, at the “low-end,” of 324 months in prison. I recommended that the defendant be placed at one of the Bureau of Prisons’ (BOP) Federal Medical Centers, but where he goes is up to the BOP. The BOP can release dying prisoners under a “compassionate release” statute, but that seldom happens. Had I imposed the statutory minimum sentence of 20 years, the BOP may have been more likely to release the fellow as he neared the end.

A reader of this blog, in another context, wondered whether I am a conservative or an asshole. He evidently does not understand the tyranny of the disjunctive.


Bozos and “blue slips”

When I was nominated by Bush 41, both Senators (Jim Exon and Bob Kerrey) were members of the Democratic party. My nomination would have died in the Senate unless those Senators each turned back a “blue slip” to the Chairman of the Judiciary Committee. The situation is now reversed in Nebraska and other places.

Today, the thoughtful and well-informed legal analyst, Jeffrey Toobin has published a piece regarding the increased significance of “blue slips” now that the Harry Reid and his loyalists have gone nuclear. See Jeffrey Toobin, BLUE-SLIP BATTLE: THE SENATE OBSTRUCTIONISTS’ SECRET WEAPON, The New Yorker (November 26, 2013). It is a “must read.”

Bozos and their supporters should take note.


When it comes to employment cases, judges are killing the Civil Rights Act of 1964

Some may recall the recent effort by an Atlanta law firm to examine statistically the number of times employment cases got tossed on summary judgment in the Northern District of Georgia. Because the study was a serious one and the results stunning, I posted several times about it. See here, here and here.

In fact, I helped the authors do a similar study of my cases. See here and here. As it turned out my summary judgment dismissal rate was higher than the aggregate rate for the Northern District of Georgia. That is, my dismissal rate was four points higher than the rate in the Northern District of Georgia (86% v. 82%).  That caused me to write this: “The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with ‘yours truly’ too.”

So, that’s the background. Yesterday, Vince Powers, my friendly nemesis, advised me about a powerful article that Nancy Gertner has written on this subject. Gertner now teaches law at Harvard, and was for many years one of the most distinguished federal trial judges in the nation. She is also a really great person with a warm and funny sense of humor. Here is Nancy’s article. I urge you to read what she has written. It will make you think hard.


ABA awards Kopf the Order of the Lenin

I just received this e-mail from the ABA Journal. It reads this way:

Dear Blawgger,
Congratulations are in order.
Your blawg has earned a spot in the ABA Journal’s Blawg 100, our 7th annual list of the best in blogs about lawyers and the law.
The full list appears in the December issue of the magazine, which was posted online today.
As we have in the past, we’re inviting our readers to select their favorites from each of the 13 categories represented in our Blawg 100.
Voting begins today and ends at close of business Dec. 20. Winners will be announced in January.
We invite you to:
• Urge your readers to vote for your blog here.
• Add a Blawg 100 badge to your site. You can find them here.
• Announce your selection with a press release. You can find a sample release here.
• Follow a list of fellow Blawg 100 bloggers on Twitter. (If you can’t find your handle on the listcontact us.)
So thanks for your hard work this year. We appreciate the high quality of news and analysis your blog provides to our legal community.

Allen Pusey
Editor and Publisher

At first, I thought the correspondence was fake because the idea of running an actual contest to determine the popularity of legal blogs is positively moronic–a little like running a contest to pick the top 100 places to live in Nebraska.  But, I ultimately determined that the e-mail was real ’cause the e-mail said I could add “a Blawg 100 badge” to my site. No honorable person would lie about such a thing. And that brings me to the point of this post.

With loins tingling, I clicked on the “Blawg 100 badge” link to survey my prize. To my utter disappointment, the badge is beyond cheesy. See below:


I much prefer the Order of the Lenin. It has been awarded 431,418 times in the past. That, my comrades, is a seriously stunning badge. See below:


So rather than pimp the inauthentic blawgger badge from the ABA, I am, today, announcing, without the slightest trace of irony, that the ABA has bestowed upon me the Order of the Lenin. After all, it does a far better job of depicting what the ABA is all about and, more importantly, I richly deserve that badge. Incidentally, and from now on, you must refer to me as “Your Most Honorable Commissar.”


Five random thoughts

  1. Omaha isn’t really in Nebraska. It is sorta like West Council Bluffs, Iowa, (if there was one) but without the ambiance.
  2. On Friday, I sentenced a young Guatemalan woman, with no criminal history. Horror of horrors, she used a fake idea to get a shitty job. Despite the Guidelines, I sentenced her to time served and no supervised release. That way ICE will allow her to depart voluntarily and she will be able to take her three little American-born kids with her back to a country where there is no milk and honey but only grinding poverty. Aren’t I a fucking hero?
  3. In Omaha, I have to go through five security devices from the time I arrive in the secure basement parking garage, travel in the “judges only” elevator, drop my stuff of in the office, put on my wrinkled old robe, and enter the courtroom to imagined trumpets. We federal district judges are certainly special, don’t you know.
  4. When I drove back to Lincoln on Friday, I listened to Rush Limbaugh to punish myself.
  5. As I get ready to go to Sioux City on Sunday to try a difficult civil case in the Northern District of Iowa, I realize why “volunteer” is synonymous with “dumb ass.” Just who in the hell am I trying to impress?


A thoughtful editorial on the Second Circuit and Judge Scheindlin

“The entire episode reminds us of the virtues of care and patience. Four judges of stellar reputation have regrettably demonstrated that impatience and impulsiveness against which the virtue of judiciousness counsels.”  So concludes a much longer editorial entitled “Judicial Patience” written by the editorial board of the New Jersey Law Journal. That board includes two former Associate Justices of the NJ Supreme Court, two former Presiding Judges of the Appellate Division, and a former Governor. It is a distinguished group of thoughtful  people.

I commend the full editorial for your consideration. It is very much worth reading.


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