The Ultimate Dissent

The majority’s reasoning is faulty. It proves too much. It sets the law upon a slippery slope. It is too clever by half. It is unprecedented. It cannot withstand scrutiny. It will lead to absurd results. It applies a one-way ratchet. It proves the opposite. It constructs, then tears down a straw man. It eviscerates settled caselaw. It misreads the pertinent text. It is dangerous. It will open the floodgates. It equivocates. It is judicial activism. It assumes its conclusions. It generates inefficiencies. It is unscholarly. It disregards public policy. It is circular. It usurps the jury’s function. It lacks any basis in precedent, legislative history, or the language of the pertinent regulation, statute, treaty, and/or Constitution, and in fact, runs directly contrary to all of these sources. It misapprehends the parties’ respective burdens. It tries to have things both ways. It is its own best refutation. It misses the point. It sows mischief. It is hopelessly ambiguous. It opens a Pandora’s box. It obfuscates rather than clarifies. It does not—indeed cannot—adequately answer the question. It is dicta. It unnecessarily decides a Constitutional question. It misreads the record. It elevates form over substance. It will have perverse effects. It disregards the evidence. It is inapposite. It misconstrues the issue. It is unsettling. It unleashes a parade of horribles. It denigrates a venerable institution. It pounds the table. It is internally inconsistent. It perpetuates iniquity. It is regrettable. It will be resigned to the ash heap of history. It is a Morton’s Fork. It is grossly unfair. It misses the mark. It collapses under its own weight. It is unworkable. It dashes settled expectations. It draws illusory distinctions. It is a non sequitur. It begs the question. It relies on overruled authority. It raises issues that the parties do not. It legislates from the bench. It cannot be taken literally. It seizes upon hard facts to make bad law. It is wrong.

Therefore, I concur only in part.

Funny, if True

I recently received my Yale Law alumni magazine in the mail. When I get this semi-annual publication, I usually skip right to the alumni notes, which I enjoy as a reminder of our basic, recurring life patterns and ongoing march toward death, only in reverse order. (I.e., death (alums 45-70 years removed from law school) / retirement (30-45) / children in college (20-30) / promotion to partner, judge, etc. (10-20) / birth of children (5-10) / marriage (3-5) / first jobs (0-3).)

This edition included the following story, related by a member of the class of 1968:

[Another YLS alum] reminds me of a story about a class conducted by the late Robert Bork and Alex Bickel. “The subject was privacy, the right of, and Bork blustered somewhat as follows, ‘Well, supposing I bolster myself for this class my having lunch at Mory’s with my usual three martinis, relieve myself to gird for the ordeal ahead with you, Alex, and these bright young things, but forget to rezip as I begin to focus on our topic of the day. As I stroll along High Street, a photographer from Life magazine with a telephoto lens (yes,  this was long ago) snaps a shot of my fly. Is that an invasion of my privacy?’ Bickel hesitated not a nanosecond before replying, ‘De minimis, Bob, de minimis non curat lex.’ ”

Two observations:

1)      I cannot imagine any professor in his right mind giving anything like this hypothetical today.

2)      Alex Bickel was awesome. Back at Yale, I knew only three things about him. First, he died young. Second, Guido Calabresi thought highly of him. And third, his official law school portrait looked different (being in a more modern style, and having a lighter-hued background) from all of the others on the walls. The portrait made Bickel look a little like James Mason, at about the time of North by Northwest.

More Suggested New Mottos for Law Blogs

As I’ve said before, I’ve noticed that many other law blogs either lack mottos, or have slogans that don’t reflect the sites’ content as well as they might. And so, as part of a series, I propose the following slogans for some other law blogs:

Balkinization: The Law Blog With the Absurdly Huge Right-Hand Margin

California Appellate Report: Where Ninth Circuit Opinions Are Related with a Straight Face 

Professor Bainbridge: Might We Suggest a 1978 Domaine de la Romanée-Conti with This Blog

Overlawyered: Chronicling our Gradual Decline as a Society, One Case at a Time

Simple Justice: Berating Non-Practitioners for Daring to Express Opinions on Criminal Law Since 2007

Groklaw: Going Where No Blog’s Font Size Has Ever Gone Before

Legal Insurrection: The Word “Legal” Appears in Our Name Wholly by Coincidence

Sentencing Law & Policy: Find Out When the Government Will Come for You, Too

Dorf on Law: The Only Law Blog Inspired by a Modestly Offensive Tim Conway Routine, Except for Tudball on Torts

(Update: I tweaked a couple of these mottos the evening I posted them.)

Justice Scalia Puppet

In other breaking news, I have ordered a Justice Scalia puppet from The puppetmaker has been kind enough to send me updates on how the puppet, under construction, is coming along. Here is the most recent photograph:


I know it looks like Justice Scalia is rocking a muscle t-shirt. In fact, the puppet’s robe and body are still in progress.

Inspired by this, I am considering ordering a Justice Kagan puppet as well, and then re-enacting Bert and Ernie skits, scene-by-scene, using the two. Scalia would play Bert. Breaking News: United States Supreme Court Reveals Reason for Delay in Issuance of Fisher Opinion

WASHINGTON, DC (UP) (JUNE 20, 2013): In a rare press conference today, United States Supreme Court Chief Justice John Roberts disclosed why the Court has taken so long to issue its opinion in Fisher v. University of Texas, the affirmative-action case argued last October.

“I want to put to rest all of the nutty conspiracy theories that have circulated around the Fisher case,” Roberts told reporters. “Any speculation that the Court is struggling with drafting the opinion, or opinions, is pure nonsense.”

“The truth behind the delay is far more mundane,” Roberts said. “As you may have guessed, we’re still waiting for the go-ahead from Madame Zena, the official Court Astrologer.”

Roberts told reporters that in the Court’s most recent seance, held earlier this month, Zena advised the justices that with Venus rising in the East, the moon remaining in the seventh house, and Capricorn and Pisces at a semisquare angle, the stars and planets would not allow the Court to announce and distribute its decision in the Fisher case.

“She told us that she perceived dark times ahead for any affirmative-action opinion issued while the skies were so aligned,” Roberts said. “And that was that, so far as we were concerned.”

At the same seance, Zena did give the Court the go-ahead to announce opinions dealing with criminal procedure and antitrust issues. “Madame Zena told us that the horoscope looked favorable for decisions on the right to remain silent, price-fixing conspiracies, and sentencing issues,” Roberts recounted. “So we rushed Salinas, Activis, and Alleyne out the door.”

Roberts acknowledged that the Court’s longtime insistence on following Madame Zena’s predictions sometimes requires sacrifices. “We didn’t really say precisely what we wanted to in any of those cases [referring to Salinas, Activis, and Alleyne],” Roberts said. “I think we reversed one lower court we meant to affirm, and vice-versa. And if you’re wondering about all the typos in Salinas, well, now you have your answer. But Madame Zena said that in a couple of days, Neptune would withdraw behind Saturn, so of course we had to act fast.”

The press conference was short but cordial, with Chief Justice Roberts growing testy only when a reporter referred to the Court Astrologer simply as “Zena.” Roberts flushed and said, “That’s MADAME Zena,” staring angrily at the chastened reporter.

Madame Zena has served as the Court Astrologer since OT 2004, when she replaced Count Zoldar. Aside from ruing that her talents are both a blessing and a curse, she declined to comment for this report.

When asked when the public might expect the Court’s opinion in Fisher, Roberts shrugged his shoulders and gestured upward to the heavens. “Don’t ask me, ask them,” he said.

Harvard Trades Lessig for Georgetown’s Barnett in First-Ever Law-Professor Swap

Cambridge, MA – The law schools at Harvard and Georgetown consummated the first-ever trade of tenured law professors today, with Harvard trading Lawrence Lessig to Georgetown for Randy Barnett and a clinical professor to be named later.

“We hated to deal Larry, but you have to trade value, to get value,” said Harvard Law School Dean Martha Minow.

More details, after the jump.

Continue reading

Annals of Unnecessary Brackets: Law School Courses and Law Blogs

It’s March; bracket season. Stupid bracket-format tournament challenges represent one of the surest signs of a blog’s editorial desperation. Some things just don’t need to be seeded, then pitted against one another. Kittens, for example.

But bracket tournaments are irresistible to lazy writers and editors. Like me. Here’s why: Properly done, brackets provide fodder for not just one, but several columns: Initial seedings! First round results! Second round results! Final matchups! Postmortems! You get the idea; the bracket-tournament format is a gift that keeps on giving to bloggers. Plus, brackets combine two activities that Americans seem to really, really like: ranking things, and elimination tournaments. (As to the latter, see my continued affection for the admittedly horrible Jean-Claude Van Damme movie, Bloodsport.) So even if a bracket challenge is incredibly stupid, people will still read it, if only to comment on how stupid it is.

This siren song has seduced several relatively good blogs (ohai, Vulture) into printing dopey bracket-tournament challenges for things like movies, sitcoms, presidents, and law professors. Since I, and this blog, do not claim to have any standards at all, I thought I would jump onto the bandwagon and offer up a couple of the dumbest bracket matchups I could think of. Let the debates begin!

First, how about this bracket challenge that pits law school courses against one another:

Hmm. I may have seeded Remedies and Securities Regulation too generously. And for those of you who teach International Law or Comparative Law and think I’ve seeded these courses too harshly, well, it’s time to get a grip on reality.

It was a tough call as to whether Torts or Con Law should grab the last Number #1 seed. I went with Con Law to dispel any allegations of a pro-Torts bias. And, yes, I did accidentally seed Property twice, which I suspect tends not to occur in real tournaments. If this error bothers you, calm down, have a drink, and just tell yourself that one of the Property entries has just been declared academically ineligible or something.

If this bracket has any worthwhile qualities at all, it’s that it made me think about what the law-school curriculum equivalent of the Berlin-Kay hierarchy / ordering of words for colors would look like. (I.e., “If a law school has seven courses, these courses will include A, B, C, D, and E, and two among F, G, and H. If a law school has eight courses, these courses will include. . . .”). But that’s a topic for another day.

A bracket for law courses not your thing? How about this bracket challenge, involving law blogs:  

Wow, the tournament organizers, whoever they may be, sure set up a fascinating first-round match-up between Concurring Opinions and PrawfsBlawg. I wonder how the participants will know who is on whose team. And I don’t know about you, but I am personally very excited about the possible second-round contest between Brian Leiter’s Law School Reports and the Inside the Law School Scam blog. And just to anticipate a question some of you might ask, no, Althouse is not invited to this tournament. This is a bracket for law blogs, not for law professors who blog. There is a difference.

The Law Blog bracket tournament strikes me as ridiculous, of course, but I can’t get over the nagging suspicion that someone else already has put together a similar set of matchups. (Looking in your general direction, Above the Law.) Anyway, have at it. Contrary to the basic premise of this exercise, I promise there will be no follow-up posts.  But remember, cash gambling remains illegal in most states. Breaking News: SCOTUSblog Unveils Plan to “Eliminate the ‘Middle Man,’ ” Start Issuing Own Opinions

WASHINGTON, DC (Press International), March 4, 2013 — SCOTUSblog, a leading online source for breaking news regarding the United States Supreme Court, announced today that henceforth it would “eliminate the middle man” and simply start issuing its own precedential opinions.

“This move makes complete sense,” Tom Goldstein, founder and publisher of SCOTUSblog, told reporters at an early-morning press conference. “The public already perceives SCOTUSblog as being more legitimate than the Court. Why, then, should we dedicate our ample talents and energies solely to reporting what they have to say?”

“Think about it,” Goldstein added. “Who would you rather have deciding issues of vital importance to everyday Americans. Nine generalist judges? Or Chief Justice Goldstein, Associate Justice Denniston, and our hand-picked crew of unbiased experts?”

In his press conference, Goldstein sketched out the anticipated SCOTUSblog opinion-preparation process. Going forward, instead of filing cert petitions with the Supreme Court, litigants would simply e-mail them to SCOTUSblog. Expedited petitions should have that little red exclamation point next to their titles, Goldstein said. Next, SCOTUSblog interns would review the petitions to cull out advertisements for Viagra or Cialis.

Chief Justice Goldstein, Associate Justice Denniston, and seven other justices drawn from the blawgosphere’s elite then would decide whether to grant certiorari in a given case, a public process that Goldstein described as a “veritable full-employment bill for bloggers.”  Once cases were selected, Goldstein said, briefing and oral argument would proceed more or less as they presently do — only with the argument being conducted over Skype, and in front of law bloggers seated at their respective computers, instead of at the Supreme Court in Washington, D.C. Following argument, one of the justices would be assigned the opinion, which would appear in due course on SCOTUSblog.

“We also will introduce a few other important, crowd-pleasing breaks from current Court practices,” Goldstein said. “After our conference, but before the opinion’s release, we will announce not only who’s writing the opinion, but how the preliminary vote went down. On SCOTUSblog, of course. And we will encourage justices to use SCOTUSblog to discuss how their opinions and dissents are going, as they write, and perhaps struggle with, them.”

Goldstein acknowledged that public disclosure of the justice assigned the opinion might lead to vituperative and extensive comments on the justices’ own blogs, in which efforts would be made to sway their votes. Goldstein responded to this point by pointing at a Sitemeter graphic and saying, “Well, duh.”

The SCOTUSblog opinion would have the same precedential value presently accorded United States Supreme Court opinions, Goldstein announced. Also, SCOTUSblog would issue a likewise precedential 140-characters-or-fewer Twitter post concurrently with the “full” blog opinion.

“My law clerks won’t look forward to drafting precedential 140-character summaries of complex ERISA decisions,” said future Associate Justice Lyle Denniston. “But it’s a small price to pay for giving SCOTUSblog greater flexibility in its editorial process, by allowing us to select and decide the cases that we’ll report on.”

Goldstein concluded his remarks by observing that certain aspects of the plan remained under debate. “Should we order the Supreme Court to shut its doors, or will they just figure it out when no one appears there for oral argument?,” Goldstein mused, perhaps to himself. As of press time, no decision had been made on this score.


OK, not really.

An Honest Advertisement for Law School Dean Candidates


Dean, School of Law

West Canterbury State University

January 24, 2013

The School of Law at West Canterbury State University is inviting applications for the position of Dean. West Canterbury State is a well-respected university that opened a Law School back in 2004, when that seemed like a good idea. Now, not so much.

The Law School is home to an impressive array of scholars. And many other professors, as well. It also claims a distinguished body of teaching professors, who tend not to overlap with the impressive scholars. The Law School has somewhere between four and nine associate deans; we lost track a little while ago. We don’t really know how many staff members we have. We think we still have a library.

As of writing, the Law School has three students who have applied for admission to its first-year class next year. Three. So we’re pretty much s******* bricks here. But not so much so that we’re willing to consider a mandatory four-courses-a-year teaching-load requirement for our professors. Let’s not get carried away here. Instead, we are looking for a Dean who can help us avoid real change, so professors can return to figuring out whether to go to that Rio de Janeiro law conference next year, or the one over in Venice.

The ideal candidate will possess:

A Time Machine: To ensure that we receive resumes from all interested candidates, allow us to emphasize that the machine only needs one setting: 2006, when we had plenty of applicants and things looked great. Candidates with the ability to alter or distort reality also will be considered.

Close Friendships with Any of the Following: Mark Zuckerberg, Warren Buffett, Larry Ellison, Carlos Slim, Bill Gates, or the Sultan of Brunei. Alternatively, candidates with maps to large stashes of prospector’s gold also should apply. So too should heirs to family fortunes of $500 million or more who enjoy skydiving and would be interested in completing personalized take-home assignments in our world-famous Wills and Trusts courses.

Incriminating Photos of U.S. News & World Report Bigwigs: Not going to say why, but hopefully you get the picture. Hint: We believe our new Rights for Left-Handers Clinic justifies, or at least could provide a smokescreen for, a 138-spot jump in the U.S. News rankings.

Powers of Hypnosis: Self-explanatory.

A Bulletproof Vest: In the event that the candidate actually has to make any real changes around here.

West Canterbury State University is an Equal-Opportunity Employer.


Dear DefiantLawProfzz Co-Bloggers,

I write the six of you, distinguished law professors all, for two reasons. First, it’s been exactly three years since we launched DefiantLawProfzz, Since that fateful day, when we began “Speaking Truth to Power Through WordPress 2.0,” we’ve had some wonderful times. Like our online symposium on Kiobel, or our other online symposium on Kiobel.  It’s been a great run, and I want to take a step back and applaud our many achievements.

Second, you’re all deadwood, and I hate you all so very, very much.

Allow me to explain. When we started this blog, we all promised to contribute new posts at least three times a month. Javier, you said this would be “no problem.” Stacy, I remember you suggested four posts, or even five as a monthly minimum. Funny, that. I don’t remember seeing any new posts from either of your lazy asses since August 2011. Not that the rest of you are much better.

At first, I hoped that your abandonment of DefiantLawProfzz would prove only temporary. And so, I lined up a slate of guest-bloggers. And then another. And then another.  Having  exhausted the supply of law professors, I have had to turn to other sources. My desperation has now reached the point that I’m recruiting our Brazilian spam commenters  as substantive guest bloggers.

But so far, they have refused. And so it has fallen to me, and to me alone, to keep DefiantLawProfzz afloat. It is a lonely task. I am not proud of all the posts I have had to cobble together to ensure a consistent flow of site content. I had no choice but to initiate recurring posts such as “Best Law Blog Week Ever,” “Questions I Asked in Class Today,” “What Number Am I Thinking Of?,” and “Name this French and Indian War Monument.”

So, let me end with this ultimatum. I want new co-bloggers. I think I can get them, provided that they’re not relegated to permanent “guest-blogger” status. And so, if you do not resign as co-bloggers by 5:00 p.m. tomorrow, or at least permit me to unilaterally add new co-bloggers to the site, I am outing each of you as Republicans who voted for Romney. Seriously. Don’t make me do this.

Best Regards,

Winthrop Livingston III

Thomas Q. Frockenthau Professor of Law

Northern Alaska Law School

* * *

At the risk of breaching all sorts of law-blogger etiquette, I recently noted that on most of the “leading” group law blogs, the “Authors” identified on the blog’s masthead don’t post with equal frequency. This observation got me wondering: How do established “group” law blogs deal with the fact that some of the professors listed on their mastheads simply don’t write posts any longer?

This problem happens. According to one leading group blog’s “search by author” function, one of the eleven “Authors” listed on the blog’s masthead has contributed only seven posts to the site since January 1, 2010. I am certain that other group blogs have similar issues, but lack a search function that permits ready quantification of the issue.

Do the authors of these blogs enter into a compact upon the site’s creation, whereby none of the founders can be removed for failing to contribute to the effort? If not, are there standards for retiring a nonproductive co-author? Or, as a lesser measure, for an intervention to get them to up their production?

Law Blogs Just Outside of the ABA Journal Top 100

This past week, the ABA Journal announced its annual “Blawg 100,” a list of the 100 “top” law blogs on the World Wide Web. Here are a few of the law blogs that missed the cut:

The Becker-Posner-Dahmer Blog

The Blog Where a White, Male, Conservative Law Professor Acknowledges that Although He’s Somewhat Marginalized in the Legal Academy, He’s Still Pretty Privileged, So, You Know, It’s All Good

Awesome Stuff Law Students Could Buy with the Money They Don’t Have Because of Their Crippling Law-School Tuition Payments

SCROTUMblog: The Weekly Recap of Embarrassing Autocorrect Errors Found in Legal Opinions

Kathleen Sullivan’s Bar Exam Tips

Sou-weet: David Souter’s Cavalcade of Fine Retirement Living

ERISAddicts — A Group Blog in Which First-Semester, First-Year Law Students Opine on ERISA Preemption

S&*! My Tenured Law Professor Says

Scalia on Tact