The Making of Mark Tushnet

The first time I ever noticed Mark Tushnet was 45 years ago in a class on the history of English law.   He suggested that he thought that maybe we had been to quick to dispense with outlawry as a form of social control.  I thought the remark clever, suggestive and probably good for a couple of extra points though I couldn't escape the notion that he probably enjoyed being a bit provocative.

The next time I noticed him, he had become one of the linchpins of the Critical Legal Studies movement, then the hot new thing in speak-truth-power law scholarship.  I'm vague on details (and the online CVs I've seen don't include his early stuff).  I recall he was writing a lot of those days (he seems always to have written a lot).  He remained clever and suggestive, but as I remember it, he pretty quickly moved beyond provocative to downright abrasive.  He seemed to enjoy ripping the socks of assorted feet of clay.

If you remember those days, I suppose you might say I have characterized the whole mischievous CLS crew, but Tushnet, though seemingly at the center of the action, always appeared to me to be his own man: a bit more serious, less juvenile--perhaps better "less frivolous"--than some of his CLS colleagues, a number of whom seemed to be cossetted Ivy League seminar brats determined to pee on their own bread.

I didn't pay much attention to Tushnet's work for many years--I've never in any serious way done con  law.  But I did read and enjoy his American Law of Slavery, 1810-1860, which I suspect might be one of his lesser known works.  I also skimmed at least one of his two books on the late Justice Thurgood Marshall for whom Tushnet had clerked.  I enjoyed what I read and in my recollection I found something there that I hadn't noticed in Tushnet's work before: a thread of warmth and affection for the brave old man (maybe it was just projection: Marshall has long  been a hero of my own).

I can't remember, then, exactly what prompted me to pick up A Court Divided, his history of the Rehnquist court, but I remember reading it with great enthusiasm over a long weekend while I was on my own in DC about 2006.  In some ways, it reminded me of what (little) I already knew of its author: serious, diligent, shrewd, but still independent minded.   Also firm in its views although I missed the edginess that I had noticed earlier (I went so far as to steal an observation of his for a talk I gave to a bar forum in  Fresno later that year.  "I think that Thomas is smarter than people give him credit for," I said (muted murmur of assent from the audience), "and that Scalia is not as smart" (undercurrent of growl).  On reflection, I really think he had Scalia's number: smart but shallow, a debater-boy, probably better suited for a Sunday morning talk show than the nation's highest court).

This is really a long buildup to a shoutout for In the Balance, his latest, a kind of a sequel to his Rehnquist book, certainly the best overview I've seen so far of the Roberts court.  Like his Rehnquist book, this new one is a remarkable mix of the doctrinal and the political.  He offers some excellent insights on the contrasting agendas of Democrats as against Republicans in seeking appointees to the high court; also a wonderful sketch of the nature and content of the "Supreme Court bar"--the small gaggle of lawyers (formerly including Justice Roberts) who do an outsized share of face-time with the justices on the bench.  But most of the book is a detailed account of the major cases: not just what they say, but how they got there, with some thoughts about what it tells us of the nature of the process.  It's pretty much of a lawyer book, not a popular book;  not for the faint-hearted, but on the off chance that I number among my readers anyone who is or soon will be tackling con law class, I'd heartily recommend it as near-essential bedside prep reading.

In short, it's got the virtues you would have seen in the young Tushnet, mostly cleansed of the impurities.   And I guess you could say I saw this coming in  my only other direct personal contact with the author.  I was on the elevator at Georgetown Law School one day, where he was then on the faculty--I guess this would be 2006, just after I had read he Rehnquist book.  I saw this short, chubby, blondish, baldish guy behind me.

"You Mark Tushnet?"  I asked.

"Yeh."

"I  enjoyed your book."

Momentary pause. Then: "Well, the publisher said it earned back its advance."

The door opened and he went out of my life, I suppose forever.






















                                                                                                                                                                                                                                                                                                                                                                                                                                                   







 

Solving the Notice Problem: The Trolls

I spent a few minutes yesterday with my bankuptcy students exploring one of the great unknowables: how do you give "fair" notice of some pending action to a whole bunch of folks who may have a stake in the matter?  I mean, especially when you may not know who some of them are--or worse, when they may not know themselves?

It has been a big issue in (for example) the asbestos bankruptcies, where you may have to cope with "known" claims and "unknown" claims--and where the class of "unknowns" may be particularly intractable because it may include people who have already ingested the nasty fibers but haven't yet begun to wheeze.*

Anyway, one of my students a point that I really hadn't thought of before--or at least not in this context.  He said that this problem has been partly solved by the personal-injury lawsuit entrepreneurs--those trolls who go on TV to tell you that "you may have a claim for blah blah!  Just call us!" You know, he's onto something.  I hate those ads, too--one reason we cut the cable.**   But the more successful those ads, the less we have to worry about the efficacy of the court-mandated notice.  Not so?
---
*Picky law types will object that the issue may turn on the law's definition of "claim," and that local mileage may vary. Well, yes it may, but the problem  is there in any event.  If you freeze the unknowns out, there may be nothing left when they finally get the bad news.  If you wait until they are known, then you do harm to the people who already suffered harm and are just waiting to be paid.

**But I guess if we cut the cable, we may never find out if we have blah blah.   I guess I have to bracket myself with those Old Believers in Russia who fled to outer Siberia and have only just now learned that there was a World War II.

Rehnquist: the Unh-hnh Moment

Years ago when the world was young, Mr. and Mrs. got to share a party boat with, inter alia,Chief Justice William Rehnquist.  After assorted bits of casual conversation and observation  she offered her insight.  

"He's a menace."

It wasn't precisely a political, substantive judgment.  Mrs. B didn't follow politics terribly closely in those days but she knew enough to understand that Rehnquist had been put on the Court by Richard Nixon to roll back--whatever.  What was news to her was not the substance, but personality: he was si easy-going, genial, modest, low-key: a guy in a baseball cap.  

It was a good call and it highlights one of the paradoxes of human behavior: Rehnquist was all that Ms. B observed and more: he drove a VW Rabbit and famously skipped the State of the Union address one year to attend his acrylics class.  Mr.Nice guy, setting aside, say, his utter indifference to the horrors of racial discrimation and his neaar-manic enthusiasm for the death penalty.  Also--but this may have taken more careful scrutiny--as manipulative and result-oriented as any judge since his great doppleganger, William O. Douglas.

All by way of background for one I hadn't heard until today.  It's in the New York Times review of a new biography of the Chief:

After years of promoting states’ rights — or “federalism” — and scoring some big victories, he surprised court-watchers by writing a decision holding that Congress could force states to give their employees family and medical leave. He may have gone “wobbly,” as Margaret Thatcher might have said, from watching the struggles of his daughter, a single mother.

Unh-hnh.

A Meta Comment on Health Care

I've been traveling and so not in the thick of the health care aftershocks (though they certainly seem strong enough to register on the seismograph at Caltech), but I want to add a meta-comment or two, chiefly about pattern of the followup.  Specifically, I'm fascinated to see how quickly and completely the blogosphere back-engineered the Scalia "dissent" to show that he thought he was writing (perhaps better, "taking a victory lap") for the majority: for a good selection of evidentiary exhibits, search here.  I'm also intrigued by the suggestion that it was intentional--that Scalia dropped those Easter eggs precisely so the world would know utterly he had been betrayed.  Could be, but his seems a bit of a stretch to me, more than a little like suggesting you look for the acrostic to show that Bacon wrote Shakespeare. 

I'm more intrigued--but would still count it as speculation--that the victor/villain in the case is Justice Ginsberg, who seems to have trolled "tax" past Justice Robert's nose in a way that induced him to take the bait.  That is: could be, but we would need a bit more compelling evidence (which, God wot, we will never get, or perhaps not for another 50 years).

I confess I have spent a few minutes with the shrieking hyperbole of the right-wing noise machine and I have to ask--isn't there some point, somewhere, at which all this becomes self-defeating?    At the very least, you would think folks would catch on that what these guys are really fighting is each other as they scratch claw for dominance before the (admittedly very profitable) public megaphone.

I'd also give the last word to Orin Kerr,  pointing out that the case was decided on the barest of technicalities and that there are any number of other legislative routes under which health care (aka,  the end of western civilization as we know it) might have emerged without any doubts as to its constitutionality.

Is Health Care Iwo Jima?

Geopolitics boffins like to draw the distinction between strategy and tactics (maybe strategy, operations and tactics, but it's a detail).  They point out that tactical victories can lead to strategic defeats.  Exhibit A: Pearl Harbor, perhaps the greatest tactical victory of the 20th Century.  It brought America into the war and led to the destruction of the home islands.  Had Japan simply tended to its Pacific knitting and ignored the United States, it might (we can imagine) have built itself a secure Pacific Empire.   Indeed, Japan was still enjoying something close to tactical victory until almost the last days of the war (think Okinawa, Iwo Jima).  And without these tactical achievements, it might not have suffered the atomic attacks, maybe not even the firebombing of the great cities.

So, is the Romney Obamacare decision Iwo Jima? Will it so energize the insulted and injured that they will come roaring to victory in November, and repeal after that?

You Pays Your Money....

My friend John has been tracking headlines on the Supreme's immigration coverage.   Here's the best pairing:   

  High Court Allows Immigration Checks

So the Wall Street Journal.  Compare HuffPost:

 AZ IMMIGRATION LAW 'GUTTED' 

 There are others.  Via Politico, I see that Governor Brewer calls it a 'victory,' i.e., for the Arizona statute, but I can't for the life of me see how she gets to that.  Apparently AZ can ask you for proof of status, as part of an otherwise lawful stop. But they can't put you in jail if you don't have it on you, so where's the fun?  Way I see it, they left the Governor with nothing but a thong.

Followup: I see Dellinger agrees. 

Followup II:  But Frum thinks it "Solomonic."  I'm a Frum fan, but this time he's smokin' dope.

 

From the Bin: Arthur Leff Explains Contract Law

Every first-year law student learns that "“A contract is a promise the law will enforce.”  But then you have to beat it out of them; to persuade them that contract enforcement has little to do with the law and almost everything to do with whether the parties want the deal to work.

How to make the point?  You could watch reruns of "The Supranos."  Or you could return to the work of the late, great Arthur Allen Leff who died in 1981 at the absurdly young age of 46:

But considerably more important for avoiding the coercive collection game is the availability of a strikingly effective alternative procedure, one while not abjuring threat and coercion, avoids the costs and dangers of the official varieties. It depends not on force, but on the exchange of information. The “solution” to many of the divers disputes between businessmen takes the form of some variation on one of the following scenarios.

[I quote only the third:]

Seller: So Kevin? Morris. Where’s the money?
Buyer: Soon.
Seller: It’s been soon for a long time. Now it’s now.
Buyer: Look Morris, I could have gotten the stuff from Acme or Nadir cheaper. I gave you the trade.
Seller: Now you’re giving me the business. Now! Or there’ll be trouble.
Buyer: Tell you what I’ll do. I’ll pay you today, right now, what I could’ve got the merchandise for from Acme.
Seller: Tell you what I’ll do. I’ll break your head is what I’ll do. We got a goddam contract Kevin, and you pay the goddam contract price.
Buyer: Morris, you don’t like my deal, sue me with your contract.
Seller: I may and I may not. But one thing I know I’ll do; anyone asks me if you pay your bills the answer is no [The last clause is delivered in a high-pitched shriek of absolute certainty.]
Buyer: Morris? Half today, the rest the end of the month?
Seller: OK.
Buyer: My best to Ethel.
Seller: You too. Remember me at home.

[Back in Professor mode, Leff draws the moral:]

It would be folly to characterize these solutions as ‘coercive’ or ‘cooperative;” they are deals and like all deals partake of both elements. But one thing is perfectly clear: this form of solution depends upon the generation, transmission and communication of information and threats of information. And another thing is clear: until one begins to understand this method of collection, one understands nothing.

--Arthur Allen Leff, Ignorance, Injury and Spite: 

The Dynamics of Coercive Collection, 80 Yale LJ 1, 25-6 (1970)
    

Supreme Court as Pulp Fiction

Linda Greenhouse calls it a Do-over Season:  the possibility that the Supreme Court might second-guess itself in Citizens United, and also in Grutter v. Bollinger.   Everybody remembers Citizens United: money in politics.  Not everybody remembers Grutter by name, but they may remember the Court nine years ago upheld a scheme of race-conscious admissions at the University of Michigan.

I suppose it's fair to entertain the prospect the Court might back down on both: the court has done so before.  Linda offers the examples of  Minersville School District v. Gobitis (flag salute) and Lawremce v/ Texas (gay rights).  With clarity of vision, she points out that "repudiations of precedent are nearly always the result of a change in membership rather than a change in perception."   But she might also have mentioned the legendary "switch in time [that] saved nine"--Justice Owen Roberts' about-face that softened the court's hard edge in against the New Deal and very likely helped to defang  President Roosevelt's court-packing plan.

So it is hard to improve on Linda's analysis, but a pulp novelist would surely consider one more possibility: that the fix is in.  Okay, we'll give you campaign finance if you give us race-based admissions.  No, I don't believe it but I'm willing to entertain myself by entertaining the thought. 

God, for a Man that Solicits Insurance

Authors and actors and artists and such
Never know nothing, and never know much.
Sculptors and singers and those of their kidney
Tell their affairs from Seattle to Sydney.
Playwrights and poets and such horses' necks
Start off from anywhere, end up at sex.
Diarists, critics, and similar roe
Never say nothing, and never say no.
People Who Do Things exceed my endurance;
God, for a man that solicits insurance!

I see the anointed chairman-to-be at the megalawfirm of O'Melveny & Myers is a graduate of Fordham--Fordham, frevvins sakes, the strivers' and strugglers' school, so not one of those Yalies or Harvards on whom the stars are supposed to fall.

I have absolutely no dog in this fight and I must say he has an impressive looking resume but there must be Ivy admissions officers gnashing their teeth and saying, "how could we have missed this guy?"    Soreheads will say: oh, it's because he is a white guy, and all the Ivies want are affirmative action hires.  I think it is more complicated than that. My suspicion is that the new man's problem in the admissions sweepstakes was that he just wasn't interesting.  I see from his O'Melveny spread that he came from Wisconsin (okay so far)that that he had an undergraduate business degree (uh oh) and worse that he specifies a concentration in "risk and insurance"* Just as a guess, I'd say there isn't anything more likely to turn off an Ivy admissions committee than a professed interest in "insurance."  Talk about your service as a sled dog at the South Pole with Scott; your career as an Olympic hot-air balloonist--talk about almost anything except your enthusiasm for--and at the age of 21, yet--for (snarf, zzzz).

"Interesting," then, may be what the law school wants, but just as another guess, I'd say it may not be what the client wants.  I suspect the client is rather more interested in the person who can become a total bore--who can drill so deeply into the client's  problem that he thinks and (worse) talks about nothing else, 24/7.   I don't know about the rest of you but I'm not all that delighted when the pilot asks me what novel I'm reading, or when the cardiologist wants to tell me about his string quartet.  Sounds like Fordham knew exactly what it was doing, and it paid off.
--
*Note an interesting sort of double game here: "risk and insurance" remains on his web page today, now, a generation on.  Surely not an oversight, yes? 

A Vader by Any Other Name would Smell as Sweet

Names define us; I think it was Daniel Patrick Moynihan who pointed out that you were more likely to be treated as Irish if your father was named "Hogan" than if your mother was.  And I feel for all those little Osamas on the playground (unless the playground is in, say, Riyadh).  In the same vein, in law school it struck me that people named Smith and Jones were less likely to get entangled with the law than people named, say, Katzenbach and McClung.  I used to invent fanciful case names.  Who can get a fair trial in, for example, Vader v. Little Sisters of the Poor?

But this guy leaves me in the dirt. 

Gastronomic Jurisprudence

"The law," Judge Jerome Frank said (or did not say) "is what the judge ate for breakfast."


Damn if he wasn't right.

Category Blurring in Law/Finance

Larry Ribstein showcases an intriguing new turn in law/business education--a proposal for an "executive MBA in law."    Larry quotes the prospectus:

The year-long program, which runs in the evenings and on weekends, will examine the impact of globalization on laws, legal institutions and capital markets. * * * This is a way for people to engage, in a more in-depth way academically, those issues they’re facing at work. * * *

 Maybe so, although when Larry gushes

It’s not just some glorified CLE. It’s theory that matters in the real world, taught by a leading law-and-econ faculty to non-lawyers.

...I have to wonder if he left his crap detector home in his other suit.  Just in general, when I hear the phrase "executive education" I smell polyester: I tend to imagine  guys making $45k a year and dreaming of $60k--that is, "executive" in the sense of "aspirational," aka "in your dreams."  And whenever a professor of anything talks about "theory that matters in the real world," he's talking in an echo-chamber unencumbered  by the  views of students who doubt that theory ever matters except insofar as it might buff a resume.   Still I would have to grant that "theory" in finance may "matter in the real world" more than other kinds of theory, but precisely because it has done more harm (maybe Marxism is a competitor here).  I can't count the number of times a student has growled contemptuously that the Efficient Capital Markets Hypothesis, say, "isn't even true"--to which the appropriate response is: that's precisely why it is so interesting.   I mean--if a "true" theory dominates the world, it's just part of the grand plan; if a false one, then it can cause no end of mischief.

But I'm a fine one to talk: I admit I have been pretending to teach crossover law/finance "theory that matters in the real world" for twenty-odd years now and I can certainly concede that the categories  blur.  I remember one year when I was putting my law school kiddies through  Brealey & Myers; late in the semester, I noticed that my successor in the classroom was a business school guy wielding Brudney & Chirelstein.  But in any event, I regularly get evaluations from students complaining that "I've got a friend in an investment bank and he says he doesn't have to know any of this stuff."  The said truth is that he is --not right exactly, but a lot closer to right than most professors would want to admit.

Meanwhile Joel points us to what may be an even more diverting venture: impeccably biglaw Milbank Tweed is offering its associates "professional development courses on business, accounting, economics, finance and negotiating" in cooperation with "Harvard’s Law and Business faculties"--branded as Milbank@Harvard. Speaking as an unreconstructed nerd, I must say this sounds like a lot of fun--and am I right to suspect that this is precisely the point?   The blurb reads like nothing so much as a recruiting teaser--you  missed Harvard the first time, we spray holy water on you and set you right so when your biglaw career goes into a low-altitude stall you can bail out with a better resume.  Odd, though, that they are admitting they even hire from other than Harvard. 

How it was: February 18, 1936

Yes, I know I'm a few weeks late, but this just turned up: a copy of the front page of the New York Herald Tribune from the day of my birth, February 18, 1936.  So, how was your day, Buce?  I'm tempted to say "slow news day," but it apparently wasn't slow to the editors of the HT:  We've got a four-column, triple deck headline on the story out of the Supreme Court (this was a Tuesday morning):

T.V.A Wins Right to Sell Power
In 8-1 Supreme Court Decision
Applying Only to Wilson Dam

More formally, that  would be Ashwander v. TVA, decided Monday, February 17, 1936, 8-1, Justice Hughes writing, Justice McReynolds dissenting (no surprise there), with a memorable concurrence by Justice Brandeis in which he articulates his views on the place of judicial review.  Boy, does anybody remember this kind of New Deal conflict any more, over the government's power to manage  commerce? Oh, right: it seems we are still relitigating and rearguing some of those old issues, not least in the arena of health care.
In context, Ashwander seems to have been a major breakthrough.  A second-lede two-column hed above  the fold in the same paper tells us that

Stocks Soar and Fall as Wall St.
Guesses Wrong on the T.V.A. Ruling

 And below that, a single column:

T.V.A. Ruling
Called Victory
For 'Yardstick'

That third is basically a reaction piece, giving the proponents the proponents a chance to wax ecstatic about the opinion "as safeguarding from legal attack the large power projects of the Administration, including Grand Coulee and Bonneville in the Northwest on the Columbia River and Fort Peck on the Missouri River in Montana."

Meanwhile Justice McReynolds, per the HT "took the view ... that T.V.A. was using constitutional authority merely as a 'thin mask' with the definite design of accomplishing wholly unconstitutional purposes."  My father was a much nicer man than the mean-spirited McReynolds but on the point at issue, he would have agreed.  My mother, I trust, had other things on her mind.

Afterthought:  Thin mask?  Maybe he means thin wedge? 

We All Suck at Law

 The good folks at Above the Law find astonishment and entertainment in the story of the former biglaw associate who tells the world that he just wasn't very good (="I suck") at law.  That would be Will Meyerhofer, "The People's Therapist," who, I suspect, his protestations to the contrary notwithstanding, can probably still tell you to three decimal places his grade average at  NYU.

As Meyerhofer obviously understands, he's not alone: lots of people suck at law, which shouldn't be too surprising in the sense that lots of people suck at lots of things, even the ones they have trained for, and even when they are sitting on 200k in student loan debt. One item of evidence that this proposition is true: the number of people who want to  escape law practice into law teaching.  I don't have exact numbers, but best I can tell, the number of applicants for teaching positions is rising even faster than the numbers of those trying to claw their way into law school in the first place.  And the quality, at least on paper--if you're not top ten percent at a top five law school, with a prestige clerkship to boot, you'd probably start making other plans.

Hah, you will say, those who can't do, teach!  But that's really not the point, at least not in the sense that you mean it.  The fact is a lot of these new professors are not mere refugee/mediocrities--as I say, look at the paper.  They're extraordinarily talented and hard working people who just can't stomach the life they thought they were (or pretended to be) training for.

Flipside: they may gag on law practice; they often are pretty good at the enterprise of being a law professor.  But being a law professor has little to do with being a lawyer: it's a whole different skill set, a whole different temperament.  And a core of it is the dirty little sotto voce that says: I am purporting to train you for a profession I do not have the stomach to do myself (exception: Yale, where don't have to pretend--they are not training lawyers, they are truly training others to be professors, just like them).

In terms of campus politics, there is a certain irony here.  The folks across the quad in Hom/SocSci, they mock us as a trade school, a barber college, teaching mere practitioners, not advancing the life of the mind.  Yet on closer scrutiny, it is they who are teaching by apprenticeship, they who are replicating themselves.  In that perspective, our life is much more abstract.
 
I don't mean to offer solace to the apprentice-masters over there in the culture factory.  As a serious student of polisci (say),  you may learn by apprenticeship, but the only thing you learn to be is another polisci professor, thus joining the great pyramid club of professors training professors to train professors.  And  I don't mean to pick on polisci: they same could be said about classics, or philosophy, or any of a dozen of those engines in self-replication.  Ponzi was a piker; if he'd come to us, he could have lived out his career full of years and honor with a festschrift and a pension at the end.

I'm not complaining, of course.  It's been a great life, this career-long avoidance of law practice.  It's given me endless opportunities to to think, to write, to follow my intellectual fancy anywhere it led.  I'm just lucky I had the chance.  For as they say, those who can't teach, do, and who wants that?

Can He Do That?

I'm still trying to get my mind round the idea that the Virginia judge who decided the Obamacare  case also owns a chunk of a Republican advisory firm.  My first thought was--can he do that?  On slightly closer scrutiny I suspect the answer is--maybe, just barely, yes.  The governing rule seems to be the one that says the judge must recuse himself in a case where his impartiality might be reasonably questioned.  I've never much liked the squishiness of that rule--I used to speak out against it  back when I did continuing legal education programs.  But if ever there were a reason for questioning, this would seem to be it.

But as my friend Richard suggests, a threshold question is--where were the government lawyer on all  this?  I assume it's the kind of question that only arises if somebody makes an issue of it.  Did they object?  What kind of ruling did they get, and from whom?   Did they even consider it?

There is a devil's bargain here, of course: if you question the judge's impartiality and lose, then you are stuck from the get-go with a judge who thinks don't think he is up to the job.  But if you don't make the objection and lose the case, then you've pretty much screwed the pooch.

Ah, Here it Is! The Policeman Fishes for Haddock

I tried to quote this the other day, but from memory and I wasn't exact.  Still, I think I caught the spirit of the occasion.  It's from A. P. Herbert, Uncommon Law, the case of Rex v. Haddock:

What the appellant did in fact is simple and manifest, but what offence, if any he has committed in law is a question of the gravest difficulty.

What he did in fact was to jump off Hammersmith Bridge in the afternoon of August 18th, 1922, during the Hammersmith Regatta.  The motive of the act is less clear.  A bystander named Snooker, who, like himself, was watching the regatta from the bridge, has sworn in evidence that he addressed the appellant in the following terms: 'Betcher a pound you won't jump over, mate,' that the appelant, who had had a beer or (as he frankly admitted) two, replied in these words: 'Bet you I will, then' after which pronouncement he removed his coat, handed it to the man named Snooker, climbed over the rail and jumped into the water below ... . The appellant is a strong swimmer, and, on rising to the surface, he swam in a leisurely fashion towards the Middlesex bank.  When still a few yards form the shore, however, he was overtaken by a river police bot, the officers in which had observed his entrance into the water and considered it their duty to rescue the swimmer.  ... He was then arrested by an officer of the Metropolitan Police ... .  The charges were various, and it is difficult to say upon which of themthe conviction was ultimately based.  The appellant was accused of:

(a) Causing an obstruction
(b) Being drunk and disorderly
(c) Attempting to commit suicide
(d) Conducting the business of a street bookmaker
(e) (Under the Navigation At) endangering the lives of mariners
(f) (Under the Port of London Authority By-laws) interfering with an authorized regatta.

 It may be said at once that in any case no blame whatever attaches to the persons responsible for the framing of these charges, who were placed in a most difficult position by the appellant's unfortunate act.  It is a principle of English law that a person who appears in a police court has done something undesirable, and citizens who take it upon themselves to do unusual actions which attract the attention of the police should be careful to bring these actions into one of the recognized categories of crimes and offences, for it is intolerable that the police should be put to the pains of inventing reasons for finding them undesirable.

Id., at 24-6 (1935, 1991).  His honor goes on to caution (at 28):

It cannot be too clearly understood that this is not a free country, and it will be an evil day for the legal profession when it is.  The citizens of London must realize that there is almost nothing they are allowed to do..

Herbert remarks in the introduction that "a sserious American work called The Lawyers " repeated the story, not recognizing it as a joke: "'No such opinion,' says the author with great pride, 'could be written by an American court.'" It is with barely concealed glee that I report that I spotted the error and outed and mocked it in my review of the book in the (defunct) Louisville Times.

Anita Who?

Clarence Thomas' wife Ginnie has certainly performed one important service for current political debate: she's educated a new generation (and reminded an old one) of just why there is so resentment against her husband and his presence on the Supreme Court.  Still, a little voice asks: what if this shrill, over-the-top, hectoring nag turns out to be right?   What if Anita is really not telling the truth?

Don't misunderstand, I think Anita is telling the truth (and that Mrs. T. was Martha-Mitchell-class loony to raise the issue).  But I once thought Alger Hiss was innocent, and that Sam Sheppard was guilty.

Afterthought: I don't doubt Mrs. T's sincerity, even though I might question her judgment. I once saw some survey data suggesting that men were more likely to believe Anita than women.  Wouldn't surprise me; after all, we know what pigs we really are.

Update:  Over oysters at Cafe Loup,  and speaking of Martha Mitchell, Larry asks--was Ginnie Thomas drunk?  It's a thought--who would do this sober?--but Anita did say the call came in at 730 in the morning.

Releases

Listening to an NPR story about how gulf oil workers were being pressured into signing liability releases, I remember the story of Hanratty, who used to work in and around the coal fields at Birmingham, Alabama. Apparently every time there was an accident, Hanratty would show up on his motor scooter and quick get everybody to sign liability releases which he then sold to the coal companies.

Apparently this got too rich even for the Alabama bar and so they went to work to put together a disbarment case against Hanratty. The morning of the hearing, the bar's lawyers showed up in their lawyer combat togs with lots of brief cases and file folders. Just in time for the hearing, Hanratty strolled in alone. The judge called the case.

"Mr. Hanratty, you are summed to show cause why you should not lose your license to practice law in this community, how say you?"

"That can be easily answered, your honor, I have no license to practice law..

With BP in the oil spill case, looks like we might not have a chance.

Roll Over, Foucault

And you thought all the trouble was in the Humanities Departments:

We do not need to write jV (GH)j and jE(GH)j separately, since jV
(GH)j = jV (G)j and jV (GH)j = jE(GH)j + 1 by construction.

--Bommarito and Katz, A Mathematical Approach to the Study of the United States Code, link.

H/T Ignoto.

Swede Power

My friend Ignoto offers up a compelling reason why the Supreme Court nominee should be Michigan governor Jennifer Granholm: she's Scandinavian, with both Swedish and Norwegian ancestors. That would make her (at least?) the third Scandinavian on the Court, all in the living memory of at least some of us. Chief Justice Earl Warren also claimed Swedish/Norwegian ancestry. Chief Justice William Rehnquist appears to have been Swedish on his father's side; his mother's ethnicity seems to be "Wisconsin," which might be the same thing.

We briefly batted around the idea that Chief Justice Warren Burger was also Scandinavian. Apparently no; Wiki puts him down as "Swiss German." But Burger does appear to have nurtured a soft spot for Swedish society, in particular, it seems, its ability to survive without the Fifth Amendment (not clear what he thought about all that socialism).

But Granholm might lose out on diversity grounds: per Wiki she (unlike her Lutheran/secularist forebears) is a Catholic. That would give us a court of seven Catholics and two Jews, effectively demolishing the much-coveted Protestant seat.