nskam

Attorneys: more likely to get divorced, be depressed, suffer from alcoholism, (and now) get in car accidents!

In a recent study, online insurance company insurance.com found that attorneys are the most dangerous by occupation. The study reported that 44% of attorneys claimed a prior accident when looking for a car insurance comparison quote from insurance.com. Compare that to the least dangerous drivers: homemakers at 24% and athletes at 17%. A top ten list for the ages:

1. Attorney/Judge

2. Financial professionals

3. Government worker

4. Bartender or waiter

5. Business professionals

6. Dog groomer

7. Marketing/advertising professionals

8. Barber/stylist

9. Coach

10. Nurse

Makes me wonder if the drunk guy who crashed his Chevy in front of me (“I’m not saying I’m drunk but I’ve had a few drinks”) was a lawyer or merely a Niners fan. Knock it off John.

From Reuters

Ninth Circuit Changes Mind, Audiences Wowed

After it’s 2002 ruling that the word “under God” placed in the pledge of allegiance by a 1954 law aimed at battling godless communist was in fact a religious prayer in violation of the Constitutional guarantee of the separation of church and state, the Ninth Circuit reversed itself deciding last week that, no, it was not. Rather:

The daily schoolroom ritual is not a prayer, but instead “a recognition of our founders’ political philosophy that a power greater than the government gives the people their inalienable rights.”

So take that anti-American communist. We’ve got limited government guided by the Almighty; all you’ve got is a bunch of dudes.

From the SF Chron

Verse in Opinion I

More verse in opinions please:

We thought that we would never see

A suit to compensate a tree.

A suit whose claim in tort is prest

Upon a mangled tree’s behest;

A tree whose battered trunk was prest

Against a Chevy’s crumpled crest;

A tree that faces each new day

With bark and limb in disarray;

A tree that may forever bear

A lasting need for tender care.

Flora lovers though we three,

We must uphold the court’s decree.

Fisher v. Lowe, 333 NW 2d 67 (1983).

—Update—

This is apparently a parody of Joyce Kilmers poem, “Trees.

Kozinski v. NYT

A few years back Chief Judge Kozinski was busted when the Ninth Circuit did an audit to see what internet traffic the judges and staff were using with what came to light as adult material:

The site, now disabled, included a video showing a sexually aroused animal, a photograph of naked women painted to look like cows and images of masturbation and public sex…

Ouch, busted redhanded and redfaced. Kozinski’s son ran the site and Kozinski may or may not have posted the above mentioned items. The kicker was that Kozinski was presiding over an obscenity appeal in the case of an adult filmmaker (U.S. v. Isaacs) at the time and there was an issue as to whether he should disqualify himself from the case. The ever-gracious judge asked an ethics panel to investigate his conduct and encouraged Chief Justice John Roberts to assign a panel of inquiry judges outside of the 9th circuit to conduct this investigation. Ultimately, Kozinski declared a mistrial (that case is still pending despite the defendant’s efforts to squirm away under double jeopardy grounds), recused himself, and an investigation took place. The finding was:

The Judge explained and admitted his error; apologized for it, recognizing its impact on the judiciary; and committed to changing his conduct to avoid any recurrence of the error. The offending material has been removed and will be destroyed. The Judges acknowledgment of responsibility combined with the corrective actions he has already completed or has committed to pursue and his apology, along with our admonishment, made public in this opinion, properly remed[y] the problems raised by the complaint.

The penalty for a 9th Circuit judge looking at porn: admonishment!

Via NYTimes.com

Literary Works in Legal Fiction

Continuing in a showcase of law review articles you might want to read comes Todd Henderson’s Citing Fiction. Like Professor Alex Long’s piece on the most frequently cited musicians, Henderson’s article takes a look at how judges utilize literature to spice up their opinions. The author goes to pains to refine his methodology to remove instances of the bastardized Orwellian and Kafkaesque and takes a separate look at references made for literary effect — that is those employed rhetorically to evoke an emotional response in the reader. Can you imagine, an emotional response in a judicial opinion? How novel. Here’s your top ten and note that Shakespeare gets kicked down a peg or two from one column to the other.

Author	Frequency of Citation	Frequency of Citation for Literary Effect
1. George Orwell	61	45
2. William Shakespeare	35	7
3. Franz Kafka	34	25
4. John Milton	20	11
5. Homer	14	11
6. Geoffery Chaucer	14	–
7. Oscar Wilde	14	–
8. John Donne	–	9
9. Robert Bolt	–	9
10. Albert Camus	–	8

Honorable mentions: Dostoevsky, Voltaire, and Faulkner. A few more findings:

“In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell.”
“[O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction.”
“[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations.”
“In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions.”

Todd Henderson’s Citing Fiction.

More to Judge: Kozinski II

US v. Syufy Enterprises

Judge Kozinski managed to get more than 200 movie titles into his opinion on this monopolistic case and still write an excellent opinion. Here is some background:

When the Syufy case was first published rumor had it that hundreds of movie titles were hidden in Judge Kozinski’s opinion. This is in fact true. The eminent judge has confirmed that there are 215 hidden titles, in part thanks to his law clerk, who was also an avid movie buff and went on to become an entertainment lawyer.

This was no casual effort; there were rules of the game. Only feature films were permitted, no made-for-tv movies. Titles had to be exact, no letters added or deleted. Punctuation was important; “seven days” did not count because the movie was “Se7en Days”; there is, however, a “Seven”. Judge Kozinski arm-wrestled and beat West Publishing for a middle initial M with no period after it. Although the trial took place over two weeks, technically, courtroom time was 8 1/2 days. There is only one lawyerly wriggle: many people do not pronounce “Ran” in Japanese. Yes, there really is a “Humongous”; I would suggest readers have the Internet Movie Database running to check titles they aren’t familiar with, or to find out just popular “Easy Money” is.

From blogdenovo.org

— Update —

The good ol’ boys at the BYU law review compiled a “Rosetta Stone” to the opinion in a 1992 law review article. Here are their first 10 found movie titles in the opinion:

Banditing?!

A Toronto man was arrested, tried, and acquitted for sexual assault. How did he get off? He says he did it in his sleep. Sexsomnia, also known as banditing (?!), is gaining credence in the medical community as an unusual but medically accepted sleeping disorder. The defense has never been raised in the states, but as the Canadian legal system is based off the same English common law system as the U.S., it’s likely to work here. It goes back to the unity of act and intent which is necessary for the conviction of any crime. With sexsomnia while the actor has committed a guilty act (the sexual assault) he was unconscious at the time of the crime and thus lacks the requisite intent.

And according to one scholar at the University of New Hampshire it’s legit.

“Sexsomnia”: Rare Form of Sleep Walking from Newsweek.

Even Livermore goes a little crazy sometimes

“Earlier this month, members of Bay Area Open Carry gathered at a Peet’s Coffee & Tea in Livermore, triggering a 911 call. Cops responded and frisked one man during his interview with ABC7 (see video via the link below). And last week’s meeting at the Peet’s in San Ramon caused quite a stir among customers who both disapproved and praised the heat-packing patrons, according to The Oakland Tribune.”

That’s just east bay knuckleheads being east bay knuckleheads. Which fits in nicely with this whole Mt. Reagan debate.

From The Scavenger at the Chron.

O-H-I-O!

From blogdenovo.org

The Turducken: a Fitting Metaphor in Privacy Law

As featured on NYTimes’ Sidebar.

Maybe the courts are getting hipper or maybe it’s the boomers discovering things like facebook, nose rings, and tweeting. Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit wrote in his dissent: “It’s a bit like building a dinosaur from a jawbone or a skull fragment, and the result looks more like a turducken.” On the other hand this is the most delicious metaphor since Holmes so eloquently equated “chicken and dumplings” to the plain meaning rule and the parole evidence rule.

See page 1052

Nelson v. National Aeronautics and Space Admin., 568 F. 3d 1028 (2009).