“Merry Fucking Christmas”

I hate Christmas. I really do. I will have a very serious post on why this is so on December 26. But, for now, consider the following:

  • Yesterday, the basement flooded.
  • Last night the clothes dryer conked out.
  • Judge Ross died this week.
  • Thanks to the blood clots from Sioux City, my balloon foot hurts and I am now wearing black slippers with velcro ’cause their the only kind of footwear that works when your foot looks likes something from the The Island of Doctor Moreau. See below.


  • My doc, educated at the Grace L. Ferguson Storm Door and Medical School, says, “not to worry” and than grins in his terrifyingly vacant way.
  • Yesterday, Petra, our oldest grandchild ended up at a Canadian hospital for her Christmas present. Diagnoses: parasites from China. See below. Thank you baby Jesus!


With the foregoing in mind, I offer you Denis Leary and Merry Fucking Christmas.  May it bring the true meaning of this blessed holiday to you and yours!


Legal realism, Article III and life’s daily hassles

Last night, while I was asleep, our basement flooded. My wife, Joan, discovered it early this morning. Joan called the plumber and he came right out. Joan has suck with plumbers. He fixed part of the problem that dealt with the floor drain. There is another problem with the water heater–it has now decided to pump Lake Erie into the floor drain. My wife will see to that fix as well. I am staying home, at least for the morning. I lean against the wall with my arms crossed, and I nod sagely as Joan converses knowingly with the workmen. I don’t know what she would do without me. After all, I am an Article III judge.


Pat Borchers’ wonderful holiday gift to the rest of us

Pat Borchers, former Dean  of the Creighton Law School, is a really good guy. True to the Jesuit tradition at Creighton, Pat is socially committed. But, he is also a self-styled conservative. He is brilliant, genuine, practical, funny and a terrific writer.

Pat has recently started a blog entitled “The Way I See It.” He explains his background and the purpose of the blog this way:

My full name is Patrick Joseph Borchers. As far as I can tell, there are only three people in the world with the name “Patrick Borchers” and I’m the only one with the middle name of “Joseph.” The paucity of Patrick Borcherses is perhaps unremarkable, as my name appears to have been a compromise. “Patrick” is quintessentially Irish, and my mother’s maiden name was Mary Bridget Hennessy.

My last name is German. A few years ago I received an email out of the blue from a Hans Borchers who had been born in the Goslar District of Germany, asking (essentially) if I were my father’s son, to which I replied in the affirmative. He was working on filling out a family tree. We Borchers are fairly easy to track as it’s an uncommon last name.

I was born in Madison, Wisconsin in 1961 to two brilliant parents. My father holds a PhD in Physics from the University of Wisconsin, where he taught on the Physics faculty and served in high ranking administrative positions (the last being Vice Chancellor for Academic Affairs) until we left in 1977.

My mother majored in Mathematics, which was extremely unusual for a woman of her generation. She had significant course work later in her life toward an MPA, though I cannot recall whether she got a degree. My interest in politics was sparked by her. When I was young (12 or so) she ran for the city council in Madison. We worked like dogs on her campaign. She lost by three votes. But she eventually became chair of Madison’s Parks Commission and then Planning Commission, which made her — as a practical matter — one of the most politically powerful people in Madison. Although we have a lot of longevity in our family, she died in 2008 as a result of a rare cancer.

I got married at what now seems like the absurdly young age of 23. It worked out. Twenty-eight years and five children later, we’re still married.

Sharing my parents’ quantitative bent, I majored in Physics and graduated from Notre Dame in 1983. But I never completely scratched that political itch and I went to law school, which was a lucky break. I attended the University of California, Davis, School of Law and graduated in 1986. I met my wife in law school and I was a law clerk for Anthony M, Kennedy the last year he was a judge on the U.S. Court of Appeals before President Reagan put him on the U.S. Supreme Court.

I practiced law in California, then got into academics, becoming Dean of the Creighton Law School, Vice President for Academic Affairs at Creighton University, and now as a Professor of Law (with an adjunct appointment in the Department of Philosophy) and directing the Werner Institute for Negotiation and Dispute Resolution at Creighton. Creighton is located in Omaha, Nebraska. Although a lot of people don’t know this, I suspect that with Creighton now in the Big East conference for sports that more people will figure this out. Anyway, that’s probably enough about me. There are a few more details about me located on Wikipedia. The link is here. Feel free to edit it, though please respect Wikipedia’s rules about “vandalism” and remember that there are laws about defamation of character.

I probably meet the technical definition of being a “public figure.” My jobs have made me fairly visible. I hold a minor public office in Douglas County, Nebraska. I flirted with running for the open U.S. Senate seat from Nebraska, before deciding to support my friend Shane Osborn. I plan on running for the Nebraska state legislature in 2016.

But having spent several paragraphs talking about me, I now tell you that this blog isn’t about me.

The last few years have reawakened my interest in politics. This may seem odd, because it has been one of the most dreadful eras for United States politics.

However, this blog will be devoted in some substantial part to politics, which brings me to its title: “The Way I See It.” Some of you will recognize this from folk musician Joni Mitchell’s hit “Free Man in Paris.” I picked it in part because I really like Joni Mitchell’s songs. But part of it is to say that this is just the way I see it.

If I had to put my finger on what I think ails our country and public debate in general, it’s that we’ve lost a respect for civil discourse. People don’t do much talking about issues anymore. There’s a lot of shouting past each other. People are more interested in scoring “gotcha” points than trying to solve problems.

As you will learn, I’m conservative. But please don’t mistake that for being closed-minded. I am genuinely interested in other points of view. Although a good deal of Hegelian philosophy doesn’t appeal to me, the notion of “thesis” and “antithesis” leading to “synthesis” contains an important insight. We are smarter collectively than we are individually.

If the first several posts from Pat are any indication, Pat’s blog will be eclectic, thoughtful and fun to read. Just this week, there is a post about a football coach, who is lawyer and a lover of pirates. There is another about two giants in the fields of economics, John Maynard Keynes and Friedrich Hayek.

Pat’s decision to blog is a wonderful holiday gift. I hope a lot of people read what Pat writes. If nothing else, you will be stimulated by the fine prose of good person and a serious, but not pedantic, thinker.


Judge Richard Arnold’s conversations with a “regular” lawyer about citation to “unpublished” opinions

arnold_richardI am pleased to post a guest piece by Elaine Mittleman  an experienced federal appellate practitioner. It has to do with the late Richard Arnold, one of the nation’s most highly respected judges, and his views about “unpublished” opinions as precedent. While the guest post is a thoughtful discussion of the substance of the issue, I am personally more interested in the two items of correspondence that Judge Arnold sent to Elaine. It shows Richard at his very best, taking the time to correspond with a “regular” lawyer about an issue that was important to the writer and recipient. From a historical perspective, Elaine’s post adds an important dimension to Richard’s biography and that is an especially good thing. Enjoy.

I have been thinking of the late Judge Richard S. Arnold of the Eighth Circuit.  A recent article about the 25th anniversary of PACER [Public Access to Court Electronic Records] caused me to reflect again on Judge Arnold’s important and path-breaking perspective on permitting the citation of unpublished opinions.

The United States Courts website article, “25 Years Later, PACER, Electronic Filing Continue to Change Courts,” December 9, 2013, explains that, for every Third Branch court, “all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes.  This level of transparency and access to a legal system is unprecedented and unparalleled.”

Judge Arnold sent me an extremely thoughtful letter dated October 25, 1999 (see below), in response to a letter about a proposed American Bar Association resolution and the issue of unpublished opinions. He wrote, “(a)s to ‘unpublished’ opinions, I do not wish to say much, lest I become too emotional.  Whether an opinion is sent to West or other book publishers is important, but not crucially so.  But the assertion by any court that it has the right to decide a case differently from an identical case submitted the day before, merely because the earlier case was not ‘published,’ I find truly offensive.”

He admitted, “(l)et me warn you that my views are distinctly in a minority among judges.  In March of 1998 I attended my last meeting of chief circuit judges.  …  At that meeting we discussed proposals to make various changes in the system of published and unpublished opinions, including a proposal to acknowledge that all opinions have precedential value.  I believe I am correct in recalling that no one at the meeting favored the proposal except me.”

In a letter (see below) dated December 13, 2001, Judge Arnold enthusiastically commented to me, “I appreciate very much your sending me the information about the D.C. Circuit’s proposed rule change.  My response is one word: ‘Hooray!’”

The excellent blog, How Appealing, written by attorney Howard Bashman, included a series of “20 Questions” for selected judges.  Senior Judge Arnold responded to the 20 questions he was asked in a post (see responses to questions 12-16) dated November 3, 2003. In addressing questions about unpublished opinions, Judge Arnold emphasized that, “(i)t’s my opinion that judges who believe that unpublished opinions should be without precedential value are driven to that conclusion by the sheer volume of work. …  I hope and believe that the idea of non-precedential opinions of any kind will be consigned to the dust bin.” Judge Arnold also predicted that, “the rule against citation … and attempts to enforce it are doomed to fail. … (I)t is just not possible to put that much of a restraint on the availability of information.”

Rule 32.1 of the Federal Rules of Appellate Procedure provides that a court may not prohibit the citation of federal opinions that have been designated as unpublished or non-precedential.  This Rule applies to opinions issued on or after January 1, 2007. Local Rule 32.1A of the Eighth Circuit provides that unpublished opinions are not precedent.  Unpublished opinions issued on or after January 1, 2007, may be cited in accordance with Federal Rule of Appellate Procedure 32.1.

In a letter dated July 10, 2006, to the editor of The National Law Journal concerning unpublished opinions, I noted the passing of former Chief Judge Richard S. Arnold of the Eighth Circuit and former Chief Judge Edward R. Becker of the Third Circuit. Further, I emphasized that a major part of the legacy of those judges should include the appreciation, as acknowledged by the adoption of Fed. R. App. P. 32.1, that all opinions are important and may be cited.

Judge Ralph Adam Fine of the Wisconsin Court of Appeals commented in an email message dated July 25, 2006, on my letter to The National Law Journal, noting that he respectfully disagreed.  He explained that, “(t)he rule in our system, as it was in the federal system before the recent change, is that unpublished decisions of our court may not be cited as precedential or even ‘persuasive’ authority.  The main reason is that most of the routine cases (that is, those merely replicating existing law) are drafted, in the first instance, by staff attorneys or law clerks.  Although the result is correct, occasionally unfortunate language may seep into those decisions because the deciding judges do not read them as they would a decision circulated by a colleague that is destined for publication. As Judge Alex Kozinski has so thoughtfully and eloquently explained, appellate judges in the federal system give even less scrutiny to these run-of-the-mill decisions.”

There may be distinctions between federal and state courts that explain or justify differing rules for publishing and citing opinions.  The controversy about citation of unpublished decisions continues.  A 2013 article by attorneys at Manatt, Phelps & Phillips, LLP, titled, “To Cite or Not to Cite?  That is the Question,” discusses citation rules in California federal and state courts.  The attorneys argue that the availability online of unpublished opinions has made it more tempting to cite them, even if there is confusion about the propriety of doing so.  They offer a roadmap for California practitioners to determine whether a particular decision may be cited in federal and state courts in California.

Judge Arnold’s position that unpublished opinions can be cited has several practical advantages.  This simple practice does not require a roadmap and rejects any argument that it is improper to cite unpublished opinions.  Further, I believe that Judge Arnold did not accept that some decisions are “run-of-the-mill” – and possibly not even read by the deciding judges – while others deserve a higher level of judicial analysis and contemplation.  I think Judge Arnold appreciated that a court decision affects and is important to, at a minimum, the parties involved.  Thus, the attitude that many opinions can be treated as insignificant and not worthy of recognition can foster unfairness in the legal system.  The result may be that a significant number of persons seeking their day in court feel that they were denied that basic opportunity.

It may be questioned whether the terms published and precedential have lost their original meaning and impact.  If opinions are available online and throughout the nation to all who want to read them, they should be permitted to be cited in legal pleadings.  Judge Arnold’s prediction – that enforcement of rules against citation of unpublished opinions is doomed to fail – was exceedingly accurate.

Elaine Mittleman

Many thanks, Elaine!


Judge Richard S. Arnold Letter 10.25.99.redacted

Judge Richard S. Arnold Letter 12.13.01

Do whatever’s right

"“He was larger than life. He had a big smile and a big laugh and a gigantic heart,” his daughter said of Donald Ross." Photo credit: Bilde, Omaha-World Herald

““He was larger than life. He had a big smile and a big laugh and a gigantic heart,” his daughter said of Donald Ross.” Photo credit: Bilde, Omaha-World Herald

The following story appears in the Omaha-World Herald today about Judge Ross:

Donald Ross repeatedly did whatever was right.

At 21, he was a bombardier over Germany with the 306th Bomb Group of the 8th Air Force.

By 31, he had finished law school and served on the City Council in Lexington, Neb., and was its newly elected mayor.

Just a few months later, he was named Nebraska’s U.S. attorney.

Before he turned 50, he was appointed as a judge to the 8th U.S. Circuit Court of Appeals.

His law partners at the time gave him a judge’s robe that was embroidered inside with, “Do whatever is right.” He was known for saying that to colleagues and family.

When Ross retired from the 8th Circuit in 1987, he told those gathered about the robe’s inscription, noting: “I’ve spent the last 16½ years trying to live up to that.”

Ross, 91, died Wednesday at his Omaha home after a long illness, said daughter Joannie Wilson of Omaha.

“He was larger than life. He had a big smile and a big laugh and a gigantic heart,” she said.

His children and grandchildren called him “Peaches.”

Wilson described some of her father’s qualities: honesty, integrity, “his ability to take his emotion out of the situation and find what was right to do.”

He had four rules: Houses are brown. Cars are blue. Dinner at 6. Do whatever’s right.

“He was a very remarkable man,” Wilson said.

Ross entered the Army Air Corps in October 1942. He flew 46 missions as lead bombardier with the 306th Bomb Group.

The 306th was the first U.S. group to bomb Germany, inspiring the book, movie and television series “Twelve O’Clock High.” Ross twice was awarded the Distinguished Flying Cross and left military service as a major.

President Richard Nixon appointed Ross to the 8th Circuit in 1971. Ross replaced Harry Blackmun, who was named to the U.S. Supreme Court.

As a judge, Ross told The World-Herald in 1987, he regarded himself as “moderate in civil rights cases” but “very conservative” in criminal cases.

Ross received the Herbert Harley Award from the American Judicature Society, a national organization of lawyers and judges, for his “outstanding service in promoting the administration of justice.” That award is the top one given by the society.

He was born near Orleans, Neb., and grew up at Curtis, Neb., where he graduated from the Nebraska School of Agriculture High School.

Military service in World War II interrupted his education at the University of Nebraska. He graduated from the NU College of Law in 1948.

He practiced law for five years in Lexington before President Dwight D. Eisenhower appointed him as U.S. attorney for Nebraska. Ross, who moved to Omaha, served in the post from 1953 to 1956.

He returned to private practice and became vice president and general counsel for ConAgra.

Before his judicial career, Ross was active in state and national Republican politics. He was Republican National Committeeman for Nebraska from 1958 to 1970 and vice chairman of the Republican National Committee from 1965 to 1970.

Other survivors include his wife of 70 years, Janice Cook Ross of Omaha; daughters Jane Moody and Sharon Stephan, both of Lincoln, and Rebecca Ross of River Forest, Ill.; son Dean Ross of Omaha; 14 grandchildren; and 17 great-grandchildren.

The family will hold a private service in Omaha before Ross’ inurnment at Arlington National Cemetery. The court will plan a memorial service for him at a later date.

By Sue Story Truax / World-Herald staff writer, published by the Omaha-World Herald on Saturday, December 21, 2013. 


More on Judge Ross

Here is the Judge’s obituary:


Ross, Hon. Donald R.
Jun 8, 1922 – Dec 18, 2013
Judge Donald R. Ross, 91, passed away with his family at his side on December 18, 2013, following a long illness. He is survived by his loving wife of 70 years, Janice Cook Ross, and his five children and their families: Jane and Randy Moody of Lincoln, Ken and Sharon Stephan of Lincoln, Rebecca Ross and Dennis Linder of River Forest, IL, Joannie and Tom Wilson of Omaha and Dean and Sharon Ross of Omaha. He is also survived by 14 grandchildren and 17 great-grandchildren.
Judge Ross was born near Orleans, Nebraska, and attended high school at the Nebraska School of Agriculture in Curtis, graduating in 1939. He attended the University of Nebraska (1939-41) and the University of Nebraska College of Law (1946-48). In October 1942 he entered the Army Air Corps and flew 46 missions as the lead bombardier with the 306th Bomb Group from 1943-45. He was promoted to Major and was twice awarded the Distinguished Flying Cross.
He practiced law in Lexington, Nebraska, with Cook & Ross, and was elected mayor of Lexington in 1953. He was appointed by President Eisenhower as U.S. Attorney for Nebraska and served from 1953-56. He practiced law with Swarr, May, Royce, Smith, Andersen and Ross from 1956-71. He served as vice president and general counsel for ConAgra from 1969-71.
Prior to his appointment to the bench he was active in state and national Republican politics, serving as Republican National Committeeman for Nebraska from 1958-70 and as vice chairman of the Republican National Committee from 1965-70. In 1971, he was appointed by President Nixon to serve as U.S. Circuit Judge for the 8th Circuit; he served as an active and senior circuit judge for 31 years.
Judge Ross’ remains will be inurned at Arlington National Cemetery with full military honors. A MEMORIAL SERVICE will be planned by the court at a later date. A scholarship in Judge Ross’ honor has been established at the University of Nebraska College of Law; memorial gifts may be directed to it through the University of Nebraska Foundation, 1010 Lincoln Mall, Lincoln, NE 68508.

14151 Pacific St. 402-391-1664

Published in Omaha World-Herald from Dec. 19 to Dec. 20, 2013


Judge Donald R. Ross is gone

photo (19)In 1972, I graduated law school and began to serve as a law clerk to the Honorable Donald Roe Ross, a judge on the United States Court of Appeals for the Eighth Circuit. The judge became my mentor, and, later, my dear friend. Judge Ross died yesterday. He was 91 years of age.

I have previously written about the judge and his heroism during the Second World War. I will have far more to say in later posts about that valor and Don’s life as a lawyer and a judge.

But for now, I reprint the dedication to Judge Ross of the fourth issue of volume 66 of the Nebraska Law Review that I wrote in 1987 on the occasion of the judge taking senior status. I do so for a particular purpose. I will briefly elaborate upon that purpose in a moment. First, please do me the honor of reading what I wrote some 25 plus years ago:


When Don Ross personally negotiated the remaking of the Republican party after the Barry Goldwater debacle, he displayed the touchstone of all great American leaders and that was a spirit of, and deeply felt belief in, the practical* rather than the theoretical. Back then, being a loyal and highly respected Republican (and, later, a great judge) did not mean that you were an obsessive and compulsive ideologue. Oh, how I wish that were so now.


*See, e.g., Alexis De Tocqueville, Democracy In America, Book 1, Chapter 10 (1835) (“Why The Americans Are More Addicted To Practical Than To Theoretical Science”).

PS For those who knew the judge and wonder about arrangements, the Omaha World-Herald recognizes today, on the obituary page, Don’s passing. Additionally, a “complete notice [will be provided] later,” according to the John A. Gentleman Mortuaries.

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