Being a legal pundit seems like good work if you can get it.

Jeffrey Toobin has a post at the New Yorker about how: (a) no more circuit court nominations will be voted on until after the election; and (b) that President Obama has not been very active about making nominations to the Federal judiciary.  We posted about President Obama and judicial vacancies here. 

Justice Scalia says he is not cantankerous. So I guess that settles that.

As the writer of a blog, I am willing to concede the point that I am apparently a bit of wonk.  However, I am not such a wonk that I am willing to waste a perfectly good Sunday morning watching "Fox News Sunday."  Happily, however Thomas M. Burton, writer of the Washington Wire, does watch such things (although he apparently gets paid to watch it). 

The Olympics

In an attempt to further Mr. Mothershead's goal of discovering "Truth, both Ancient and Modern, one post at a time", I am excited to point out that the peculiar combination of things "both Ancient and Modern" known as the Olympics starts this weekend.

If you like the Olympics (and what right-thinking person does not like the Olympics?), then Slate has an interesting and entertaining feature by which you see how Olympic heroes from various Olympic games would fare in competition against each other.  The feature is here.  Everything from this point on will be a spoiler for that feature.  Consider yourself warned. 

Initiation and Appreciation

Messrs. Gillette and Torvik:

I deeply appreciate the honor of being invited to your prestigious blogging institution, and will hold my duty dear as the Sacred Lamb.

All Men should be so lucky; but, only I am.

Let us together discover Truth, both Ancient and Modern, one post at a time.

Kyle Mothershead

Some people really should know better.

If you google the phrase "computer forensics firms" google will give you about 2,540,000 results in .48 seconds. 

"What is actually against the law is unknowable."

A thought-provoking comic strip about the ever-expanding police state.

The Future of US Politics Has Arrived

The young woman in the middle below is running for New York State Senate.



Her name is Mindy Meyer. This photo is from her campaign website, which is well worth perusing. It looks as though she has some work to do to win over some of her constituents.

"Leave goat man alone. He's done nothing wrong."

Time saves the best quote for last.  Goat man is more apparently more like pigman than, say, Spiderman.

Was Penn State punished enough?

Other than this, we have not blogged about the Penn State/Jerry Sandusky sexual abuse scandal.  If one is inclined to believe the Freeh Report--and I think everyone other than perhaps Jerry Sandusky and Joe Paterno's family believes the Freeh Report--then it is clear that since 1998 Penn State officials knew that Jerry Sandusky was acting inappropriately with children.  Penn State's response to that knowledge was to engage in actions that seemed to designed to cover up Sandusky's behavior rather than report it to the authorities. 

It does not seem like it was worth it.

To paraphrase Jane Austen: It is a truth universally acknowledged, that sometimes one wonders whatever happened to sexting attorney Kenneth Kratz.  Longtime Reader(s)™ may recall that Mr. Kratz is a former district attorney for Calumet County, Wisconsin who lost his job when it was revealed that he had propositioned a domestic abuse victim when she came to see him about her case.  After these revelations surfaced it turned out that other women had also been inappropriately approached by Mr. Kratz.

"Billing legal hours like truffle pigs."

Sometimes a turn of phrase jumps out at the reader.  One example of this is found in this New York Times article about the legal woes facing David Adjmi.  Mr. Adjmi, a playwright and University of Iowa alum, is in the news because his latest play 3C has received a cease-and-desist letter from lawyers representing the producers (more accurately, the children of the producers) of the 70s TV show Three's Company.  The producers are unhappy about the similarities between 3C and Three's Company and think that Mr. Adjmi's play is not a fair use parody of Three's Company.

Programming Note

Justice Scalia is going to be on the Piers Morgan show tonight.

The other shoe drops

Back in February, Mr. Torvik posted about how the Seventh Circuit disbarred Milwaukee, Wisconsin criminal defense attorney Bridget Boyle.  The Wisconsin Supreme Court suspended Ms. Boyle's law license for 60 days, effective June 27, 2012.  Ms. Boyle also had to pay at $5,000 fine.  The order is here.  One might think tht the suspension is related to the disbarrment.  Surprisingly, however, the case that prompted the Seventh Circuit to disbar Ms. Boyle is not part of the events that led the Wisconsin Supreme Court to suspend Ms. Boyle's law license.  Of course, because this is the Wisconsin Supreme Court, two justices dissent. Athough they dissent because they think the penalty is not sufficient so maybe we are ok with that.

Who wouldn't want to own someone else's coffin?

In his short story The Rich Boy, F. Scott Fitzgerald made the observation that the rich are "different than you and me."  The Notorious B.I.G. may have been making a similar point in Mo Money Mo Problems. 

What Would Happen ...

... if corporations could make direct campaign contributions to candidates for political office?

Such direct contributions have long been illegal in federal elections, and remain so. Limits on direct campaign contributions or expenditures (as opposed to "independent expenditures") have been upheld under the First Amendment, as applied to both individuals and business entities, because of the compelling governmental interest in limiting corruption or even the appearance of corruption in political elections. (Independent expenditures, whether by individuals or corporations, do not implicate this interest because of the supposed lack of an apparent quid pro quo—at least according to the Supreme Court.)

In Citizen United, the Supreme Court struck down limitations on the ability of corporations and labor unions to make certain independent expenditures to candidates for federal office. Previously, such expenditures had to be routed through political action committees; now they can be made out of general treasury funds.

Mr. Gillette and I have previously pondered whether this change in the way that corporations and unions can spend their money (out of their general funds, rather than through PACs) would really change how much they spend in attempts to influence elections. Particularly because PACs may allow corporation to spend money on politics without alienating potential customers who may disagree with the corporation's preferred policies.

In case your j.d. needs an upgrade

Yale is now offering a PhD in law.  Should we return to the happy days of law school, Mr. Torvik?

Jay-Z's "99 Problems" as a teaching tool.

Depending on how you feel about Jay-Z, this is fantastic.  Or at the least, it is an entertaining article.

Woody is right about this.

Mr. Torvik asks whether I think there was a "golden age" of lawyers.  He also asks "Should we return to the lost ideal of the noble lawyer, as best personified by your former boss, Judge David Doty? Is this post just snarky ignorance?"  Read on for my answers.

The Badger Game

For reasons that I will not divulge, I was doing some research into scams. By happy accident, I came across this Wikipedia entry on a con called "the badger game":

There are several variations of the con; in the most typical form an attractive woman approaches a man, preferably a lonely, married man of some financial means from out of town, and entices him to a private place with the intent of maneuvering him into a compromising position, usually involving some sort of sexual act. Afterward an accomplice presents the victim with photographs, video, or similar evidence, and threatens to expose him unless blackmail money is paid. 

The woman may also claim that the sexual encounter was non-consensual and threaten the victim with a rape charge. It can also involve such things as the threat of a sexual harassment charge which may endanger the victim's career. 

In the days before photography or video, the accomplice would usually burst into the room during the act, claiming to be the woman's husband, father, older brother, etc., and demand justice. The con was particularly effective in the 19th and earlier 20th century when the social repercussions of adultery were much greater. A famous person known to have been victimized by the scheme was Alexander Hamilton, whose adulterous affair with Maria Reynolds was used by her husband to extort money and information from him. 

Variants of the con involve luring the mark with homosexual acts, underage girls, child pornography, bizarre sexual fetishes, or other activities deemed to have a particular social stigma.

In case you were wondering, the con may take its name from the Badger State:

There are two competing explanations for the origin of the term badger game. One explanation is that the term originated in the practice of badger baiting. Another says that it derives its name from the state of Wisconsin (the Badger State), where the con allegedly either originated or was popularized. 

There is no citation for the speculation that the con was "popularized" in Wisconsin. But Wisconsinites are an enterprising people, so you never know.

Was there a Golden Age for the Legal Profession?

Yesterday I linked to an article by Professor Jim Chen about the state of the legal profession. One of Chen's arguments was that "the contemporary legal profession languishes in the memory of a golden age" even though "there had never been a golden age in the American legal profession."

Blogger-lawyer-jerk Scott Greenfield dissents, arguing that there was indeed a golden age of American lawyering, as proved by the career of his Uncle Dave:

How the other 1% lives...

The New York Times has this interesting article on the tax problems of the very wealthy. Money quote:

Be careful of these tax-driven decisions. They can drive you into irrevocable decisions that you later on regret.

"Lawyers in the United States today are competing against nonlawyers, against non-Americans, and against nonhumans."

Professor Jim Chen, who taught Mr. Gillette and me everything we don't know about constitutional law, has some thoughts about the future of the legal profession and legal education:

In our time, the free movement of labor, capital, and information has created a global economy that moves by the gigahertz.  In this economic milieu, education is worth what its purchaser can earn with it.  The legal profession, and most of all the educational branch of the profession, owes society a far more practical response than painful expressions of longing for a golden age that never was.  The putative prestige of the legal profession was always as arbitrary and illusory as the promise of gold as an inherent store of wealth.  Lawyers and their teachers must learn that theirs is no longer a professional guild, but a competitive trade.  Legal education is what enables students to earn a living in life, and nothing more pretentious.

Read the whole thing.

More Posner. Sort of.

I hope we are not turning into a blog about all things Posner.  That said, I recall a New Yorker article from several years ago that mentioned he likes cats or perhaps just the cat in his house.

Posner, Posner, Posner, Posner

One of the common criticisms of this blog is that we spend too much time talking about Wisconsin. If you scroll down and look at the "labels" section on the right, you'll see that we've labeled over 40 posts with the "Wisconsin" tag, even though this is ostensibly a law blog and neither us regularly practices law there (although Mr. Gillette is a member of the Wisconsin bar, I believe, and both of us spent our formative years living there).

This is all preface to pointing out that we have a strange new obsession: Judge Richard Posner. I suppose it makes some sense; after all, we did sort of steal the title of his blog.

So, two notes to keep the obsession going:

Clue or no clue?

In case you need some people who do not know who leaked the story about Chief Justice Roberts switching his vote in the Obamacare decision speculating on who leaked the story to CBS reporter Jan Crawford, the Atlantic Wire (and many, many others) has you covered.  Strangely, none of these articles mention the most likely suspect--

Oyez! Oyez! Oyez!

The best part of clerking for a federal district court judge was watching naturalization ceremonies. These are occasions both solemn and joyous, and they presented a rare opportunity for me, as the clerk, to announce the commencement of the proceedings with the "long call," which begins, as I recall, with "Oyez! Oyez! Oyez!" (Though maybe there were only two Oyezs.)

American citizenship is something most of us take for granted most of the time. But we shouldn't. Here's one reason why.

Happy Fourth

I hope everyone has a happy Fourth of July.  Here are two random thoughts regarding the day:

Perhaps it was a Tea Party dissent?

Mr. Gillette forcefully takes me to task for suggesting that Justices Scalia, Kennedy, Thomas, and Alito are true conservatives while Judge Posner is not.

Was it "truly a conservative" dissent?

Mr. Torvik asked me the other day if I had a "better theory to explain Judge Posner's contrarian musings" about the dissent in the Obamacare decision.  This is Mr. Torvik's theory: 

Some Pale Reflections of Jeffrey Toobin's Brilliance

Jeffrey Toobin, a noted Supreme Court expert and famed prognosticator, has an essay on the Obamacare case in the latest issue of The New Yorker. I have some thoughts in response to a few of his statements.

Does Teaparty.org agree with the New York Times as to why Chief Justice Roberts voted to uphold Obamacare?

The Drudge Report noted on Friday that Michael Savage, the host of a conservative radio program, blames epilepsy medication for Chief Justice Robert's decision to vote to find Obamacare constitutional.  Apparently some epilepsy medications cause "cognitive problems."  Mr. Savage apparently believes that cognitive problems are the most likely explanation for Chief Justice Roberts's decision.

Teaparty.org has a link to Mr. Savage's broadcast where he makes the claim. It also has the text of the full quote:

Let's talk about Roberts. I'm going to tell you something that you're not going to hear anywhere else, that you must pay attention to. It's well known that Roberts, unfortunately for him, has suffered from epileptic seizures. Therefore he has been on medication. Therefore neurologists will tell you that medication used for seizure disorders, such as epilepsy, can introduce mental slowing, forgetfulness and other cognitive problems. And if you look at Roberts' writings you can the cognitive disassociation in what he is saying," Michael Savage said on his radio program this evening.

The site also links to a 2007 article that about Justice Roberts's epilepsy that ran in the New York Times. I was surprised that a conservative new media website was citing to an article by the "lamestream media" and suggesting that the New York Times knows what it is reporting about. Initially, I thought that if the a Tea Party website is linking to a New York Times article, then that article will discuss the cognitive problems caused by the epilepsy medication.

I am disappointed to report that the New York Times article does not mention cognitive problems.  In fact, the article does not report that the Chief Justice is even on epilepsy medication.  Instead, the article speculates that the Chief Justice might be on epilepsy medication because he has a couple seizures and the standard treatment for people who have two seizures is to get on the medication.  No one associated with treating the Chief Justice will talk about his treatment with members of the media. 

So, the answer to the question posed by my post is "no."

A Working Theory of Judge Posner

A reader (!) emails with the following question:

What is going on with Judge Posner?  He seems to be emerging as a critic of the conservative wing of US Supreme Court.

Clearly I, as a renowned scholar of Judge Posner's jurisprudence, am the man to answer this question. Unsurprisingly, I have a theory.