UPDATE: Hansen, Hasen and “My bad,” sorta

There is nothing that upsets law professors more than having their names misspelled.  As he points out, the correct spelling of the Professor’s last name is “Hasen” and not “Hansen.”

The Professor also claims that I “also was wrong about . . . practicing law. I did (and still do).” Come on Rick. You know I didn’t write about signing appellate briefs. I wrote about trial lawyers.  So, perhaps you will tell us how many jury trials you have first chaired, and how many bench trials you first chaired. It would be good too if you gave us the dates and details. That way we could judge whether your views about what is “classy” have ever been tested in the rough and tumble world where you must learn to take a punch.

Hasen also writes, “Nothing like waking up Monday morning to an ad hominem attack by a federal judge.”  Given the Professor’s unprompted post about my lack of “class,” the hypocrisy of claiming to be a victim is something I have come to expect from academics when they are challenged.

But let me not distract the reader from my earlier post.  Who anointed Hasen (or even Hansen) as Ms. Manners and why should anyone care about his perceptions of what is “classy?” Besides, what the hell does “classy” have to do with the substance of what I wrote.

Finally, just this minute, I see that Professor Hasen has written a new piece entitled, Judge Kopf Continues to Make Inappropriate Remarks; Time for Him to Retire.  I have my own thoughts about this piece, but for now I simply urge folks to read it and make their own judgments.


PS I continually refer to Scott Greenfield as “Jeff” but Scott (Jeff) takes it in stride.  I make mistakes like this ’cause I’m old and don’t proof read worth a damn.  So, what’s-his-name ought not feel either special or particularly aggrieved.

Guilty pleasure

Photo credit:  eric molina.  Used pursuant to Creative Commons Attribution 2.0 Generic license. The image has not been altered.

Photo credit: eric molina. Used pursuant to Creative Commons Attribution 2.0 Generic license. The image has not been altered. (There is a possibility that only Scott Greenfield and close followers of Simple Justice will understand the true significance of this photo.)


In my post, The evisceration of Dahlia Lithwick, I referred to Ms.Lithwick as being “very bright.” Among a lot of other things, I also added: ” Lithwick can be a tiresome scold. Taking her down several pegs is a good thing if you care about intellectual rigor and the national legal commentariat.” I “pimped” Scott Greenfield’s incisive critique off Lithwick’s comparison of the Court’s First Amendment jurisprudence to other Constitutional values that she evidently holds more dear.

Rick Hansen Hasen, a law professor and blogger, responded with a post entitled, “Judge Kopf Calls Dahlia Lithwick a ‘Tiresome Scold.‘” Professor Hansen’s Hasen’s first sentence reads this way “Keeping it classy, as usual. (More here.).” Subsequently,  Michelle Olsen ‏@AppellateDaily chimed in, writing, among other things, “To show my cards, I find honest criticism (à la @ScottGreenfield) helpful, rooting for ‘evisceration’ of a ‘scold,” weird.'” In response, Professor Hansen Hasen wrote, “Not just weird, but sexist” and in a second tweet, “But we should expect this from judge who writes about ‘ample chests’ of lawyers arguing before him.”

I confess to taking guilty pleasure in annoying law professors who have never made their living trying cases and who dictate manners to others when a fellow “highbrow” is grilled. Now, I both admit and realize that “guilty pleasure” is the “distillation of all the worst qualities of the middlebrow.” But, unlike Professor Hansen Hasen, I have never thought of myself otherwise.


*Corrected at 4:55 PM on October 27, 2014 to correctly spell Professor Hasen’s name.


Governor Christie, Ebola and locals acting like yokels

Please briefly review my prior post, Civil liberties, isolation, quarantine, Ebola and other terrifying diseases (among other things, stating that “scary though it may be, the 50 states and the various Indian tribes have the primary authority to deal with outbreaks like Ebola assuming the patient is not at a US port of entry or is not likely to travel between the States or reservations.”)

Pursuant to an order of New Jersey Governor Chris Christie, a young nurse has been physically detained against her will and quarantined merely because she treated Ebola patients in Africa. She is entirely asymptomatic and there is apparently no reason to believe that she failed to follow the proper protocols while engaging in her medical work in Africa. She has twice tested negative for Ebola. She can’t see her lawyer. The CDC believes this quarantine is both unnecessary and unwise. See here for the details of this story and how the tremendously courageous and articulate nurse, Kaci Hickox, skewers Christie’s decision.*

If you care, really care, about civil liberties, Governor Christie’s decision, unsupported as best I can tell by medical and scientific evidence, ought to concern you. I fear that my previously expressed fear about leaving these decisions to our 50 state governments and Indian tribes is coming to fruition. Christie seemingly proves once again that locals often act like yokels.

Maybe it is time to break out the Constitution. As I have said before, the specter of “big brother” with a stethoscope and a sidearm is not solely the province of lunatics.


*New York Gov. Andrew M. Cuomo (D) has imposed a similar rule and so has Illinois. See here.

The candid lawyer, Robert H. Jackson

The American lawyer, even one who is a partisan, is frequently the only one in the room who is candid. Keep that idea in mind as you read the following piece from the always fascinating Jackson List.

In 1880, Mr. Velona Walter Haughwout of Fall River, Massachusetts, married Helen J. Preston in her hometown, Jamestown, New York. They settled in Fall River but retained ties, through her family, to Jamestown.

Decades later, Mr. Haughwout read Jamestown newspaper stories—some and maybe all sent by his sister-in-law, who continued to reside there—about the activities, including public speeches, of a Jamestown attorney, Robert Houghwout Jackson. [Later to become Justice Jackson.] Perhaps Haughwout and Jackson had met. They definitely were connected by Jackson’s middle name, which was his mother’s maiden name. Haughwout concluded, it seems correctly, that he and Jackson were related descendants of an early Dutch settler in New Netherlands (North America, and later the United States).

In June 1928, Mr. Haughwout wrote his compliments to Jackson:

Robert H. Jackson, Esq.

My dear cousin:

I read with great profit and inflated sense of pleasure your screed upon Russia.

My inflation was due to the astonishment that our family name was sustained by a man of real consequence. I had supposed Haughwoutian oratory to be an extinct art. I salute you sir and am proud to subscribe myself your kinsman.

V.W. Haughwout

That Fall, Haughwout wrote again to Jackson. Haughwout’s sister-in-law had sent him a story on a recent Jackson speech supporting the Democratic Party’s nominee for president, New York Governor Al Smith. “[W]hile I cannot subscribe to your conclusion that Smith should be elevated to the White House,” Haughwout wrote,

I must say that the speech was by far the most satisfying one I have read during this filthy campaign, barring none. It is so superior that I am passing it on to a prominent Boston friend of mine as a specimen of fearless, lucid reasoning. I hope it does not carry him over into the Smith column, but I am for frankness whatever the result. … It would clarify the air if both candidates [Al Smith and Republican nominee Herbert Hoover] were to imitate your candor.

On October 24, 1928, Jackson dictated and sent a letter back to Haughwout. Jackson expressed some agreement about the Smith-Hoover race and then mentioned the candidacy that he found more promising:

I appreciate very much your kind words about my speech but I really think that it only shines by reason of the dismal campaign background which is the worst in my recollection. We have, however, in Franklin D. Roosevelt, a splendid candidate for Governor of New York whom I hope to see elected.

* * *

Robert Jackson met Franklin Roosevelt in 1911 and then had episodic contacts with him over the next seventeen years. Roosevelt was elected Governor of New York in 1928, and thereafter, and even more so after his reelection in 1930, Jackson was in contact with him and involved in state policymaking and politics.

In 1932, the Democratic Party nominated F.D.R. to be its presidential candidate. Jackson became a prominent campaign lawyer and spokesman.

On October 24, 1932, James A. Farley of New York, the Democratic Party’s national chairman, held a press conference at his headquarters, the Biltmore Hotel in Manhattan. Farley announced that he was forming a state-wide lawyers committee to protect Democratic Party interests before the election and at the polls. The committee’s first task, he said, would be to investigate the reported Republican campaign to intimidate workers from voting Democratic. Farley announced that Robert H. Jackson of Jamestown had agreed to chair this committee, and that Jackson would appoint chairmen of district committees to assist him.

Jackson worked quickly. Two days later, he announced that he had appointed Democratic lawyers’ committee representatives in judicial districts and counties across New York State, and that they were investigating dozens of complaints of factory owners and managers attempting to intimidate workers into not voting Democratic.

Late the next week, Jackson reported back to Farley, and publicly, on his investigation of alleged employer intimidation of prospective voters. Jackson and his committee members had found that: (1) only a small proportion of employers had used such methods; (2) the similarity of their methods and “advice” to workers indicated a common origin; (3) such efforts “boomerang,” causing more resentment than intimidation; and (4) federal and state legislation should be enacted to punish “every such attempt.”

* * *

On the following Tuesday, November 8th, Governor Roosevelt defeated President Hoover. In New York State’s race for governor, Lieutenant Governor Herbert Lehman defeated the Republican candidate, attorney William J. Donovan.

Through the following year, Robert Jackson continued to practice law in Jamestown, and to assist the Democratic Party and its candidates.

Mr. Haughwout died in February 1934, two weeks after the U.S. Senate had confirmed his kinsman Jackson’s appointment to his first New Deal office, a senior position in the Treasury Department. In a few more years, his speeches, reports and other writings, and his candor, would come to national and then international attention.

* * *

John Q. Barrett

Professor of Law, St. John’s University, New York, NY

Elizabeth S. Lenna Fellow, Robert H. Jackson Center, Jamestown, NY

The evisceration of Dahlia Lithwick

Scott Greenfield

Scott Greenfield

If you want to read a great piece of critical legal writing, page through Scott Greenfield’s piece Horse-Trading Constitutional Rights. Scott incisively dissects a poorly reasoned article written by the very bright Dahlia Lithwick for Slate entitled The Courts’ Baffling New Math.

Dahlia Lithwick

Dahlia Lithwick

To be clear, I pimp Scott’s piece primarily because it is an example of excellent legal writing. Moreover, but less importantly, I agree with his point. Finally, Lithwick can be a tiresome scold. Taking her down several pegs is a good thing if you care about intellectual rigor and the national legal commentariat.


On Going to Omaha with a bloody nose

Got up at 4:00 AM this morning. Had another bloody nose and I am still having trouble getting it stopped as I pen this piece. My legs and feet are swollen up again.

I have to leave early to drive the 60 miles between Lincoln and Omaha. I have a judges’ meeting in Omaha that will burn up the morning. After our big meeting, I will also visit with Chief Judge Smith-Camp and Judge Gerrard, my colleague in Lincoln, about getting back into the case assignment wheel on December 1, assuming that bloody noses and leg and feet swelling are not a harbinger of bad things to come when I undergo my late November PET scan.

Photo credit: Thesun.co.uk.  Don't you love the British tabloids?

Photo credit: Thesun.co.uk. Don’t you love the British tabloids?

This afternoon, I will meet with the head drug prosecutor for the district, a senior probation officer and a federal defender to fine tune our handling of sentence reduction matters due to the retroactive amendment to the drug tables. In our little district, we have about 700 of those sentence reduction matters.

I feel foolish as I type this with a long piece of twisted Kleenex sticking out of my left nostril. Just for fun, when I get to Omaha, I think I will tell my colleagues: “Don’t worry, UNMC thinks there’s only a small chance of Ebola.”

I feel better already.


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