f/k/a archives . . . real opinions & real haiku

November 30, 2004

Bashman on Harvard Law & Free Speech

Filed under: pre-06-2006 — David Giacalone @ 11:49 pm

speaking truth
the rainy season’s crack
of thunder

                       Kobayashi ISSA,

                       translated by D. Lanoue

This Harvard Law School graduate (HLS ’76) would like to join Howard Bashman’s reminder to my

alma mater that free speech often comes at a cost — as does sticking to one’s principles.  Howard

responds to news that HLS plans to start barring military recruiters, in the wake of  the 3rd Circuit’s

decision yesterday overturning the Solomon Amendment. 


Rather than losing federal funding, Harvard Law School has been allowing military recruiters on campus,

despite the anti-gay policies of the military.  As Howard points out, in words worth quoting in full:

don't forget tack “Harvard Law School at all times (including now) has had the right to ban

military recruiters from campus notwithstanding the existence of the Solomon Amendment

— the university simply had to pay the price in loss of federal funding.   Dean Kagan’s statement

suggests that now that the price to be paid will soon be zero dollars, Harvard Law School can

afford to exercise its right of association in the manner it prefers. On this very point, to the extent

that the Solomon Amendment causes a law school to “speak” in any manner, it seems to me

that a law school is forced to reveal that it finds the continuation of federal funding to have

a greater value than the evenhanded application of the school’s anti-discrimination policy.

This ‘speech’ — which reveals that the exercise of rights sometimes comes at great cost; even

at a cost that may be too great to bear — would seem to teach law students a valuable lesson

about how the real world often operates.”  (emphasis added)

If Harvard Law School can’t afford to give up federal dollars in order to take a principled stand, who can?

things looking up — defining 2004

Filed under: pre-06-2006 — David Giacalone @ 10:50 pm

Merriam-Webster’s Words of the Year 2004 have been announced.    thesaurus

It’s a list of the ten words that have been looked up the most at the M-W

online dictionary and thesaurus in 2004.


Most webloggers will take special notice, I’m sure, that the word “blog” was came in at

#1.   In fact, as TalkLeft notes, “blog”  will be a new entry in the 2005 version of the

Merriam-Webster Collegiate Dictionary, Eleventh Edition.   Here’s the M-W definition:

Blog noun [short for Weblog] (1999) : a Web site that contains an online

personal journal with reflections, comments, and often hyperlinks provided

by the writer

I’m sure there will be plenty of quibbling over the definition, but I plan to stay out of

that loop (find other defintions of “blog” at OneLook Dictionary and Ask Jeeves).

Of course, I need to preserve my customary objection to the adoption of that ugly

 little word.  Click here for a brief history of the word “blog” (and my plea that we

do better from now on as we create our online and technological Language Legacy).


I have a different observation:  M-W‘s Top Ten List gives a remarkably good sketch

of the events of 2004 — an outline of words on the minds of many Americans. In addition

to “blog,” here’s the list:

 2. incumbent
 3. electoral
 4. insurgent
 5. hurricane
 6. cicada
 7. peloton : noun (1951) : the main body of riders in a bicycle race
 9. sovereignty
10. defenestration

   blackboard abc  There are still 31 days left in 2004.  I wonder what events in America or

around the world could change this list, as we go online to better understand the words

that are important to be well-informed citizens, students, parents, and human beings.



looking up, wrinkles
looking down, wrinkles…
a cold night


drawing words
in an old tray’s ashes…
winter cold

Kobayashi ISSA, translated by David G. Lanoue                                                       

Brainsize & More – lawyer stats

Filed under: pre-06-2006 — David Giacalone @ 3:59 pm

Surf serendipity sent me from Legal Reader‘s blurb yesterday on lawsuits

in China, to other exotic ports of call, and then back to my neighborhood

Underground cafe, where Evan Schaeffer wonders about the optimal size

of lawyer brains.   Here’s a quick journal of my trip results:

tiny check Civil suits in China increased 7-fold in just two years, while     graph up gray

the number of lawyers in Shanghai grew almost 50%.  Maybe we should

outsource Walter Olson  and Jim Copland to China, where it’s probably

still easy to discipline school kids. (see LATimes via LegalReader)



tiny check The ABA’s survey of Lawyer Population by State shows that

there were 1,084,504 active lawyers in the USA at the close of 2003.  The

biggest percentage growth was in Virgin Islands, Utah, and Indiana, while

Vermont, South Carolina, Rhode Island, and Maryland had fewer lawyers in

2003 than in 2002.   You can find a lot more lawyer and law school stats 

  • According to Texas U. Professor Stephen Magee, each additional

    lawyer reduces GDP by $250,000 dollars — but, who’s counting?

tiny checkAs of today, about 47% of attorneys answering Findlaw’s Hindsight

& Careers poll, say they wish they had never taken the Bar exam; and,

don’t tell Carolyn, but almost twice as many wish they had gone to a

BigLaw firm than say they would have chosen a smaller firm.


tiny check At U. Ill. U/C, I found an essay asking Are There Too Many Lawyers?, which

was presented by the Pre-Law and Law School Admissions office.  If anyone

has a clue what this piece is saying, please let me know.  Meanwhile, I was

edified by this nugget of information (emphasis added).

When asked what skills they expected law school graduates to 

tbring o a firm, hiring coordinators listed in order:

  1. oral communication skills
  2. written communication skills
  3. legal analytic ability
  4. library and computer skills
  5. sensitivity for ethical skills.

Is it any wonder that law firms now need to hire in-house legal counsel, and

that “Lawyers representing lawyers find unique challenges” (see BostonBizJ,  


tiny check  Please don’t forget poor old North Carolina, which is suffering from severe LSD —

law school deprivation syndrome — having, according to some sources, too few lawyers and

too few law schools.


tiny check  Finally, if he can stand a large dose of bigotry, Evan Schaeffer might want to check out

the Father’s Manifesto website, which has cranial capacity charts galore, along with lots of

standardized test results.  At the site we learn, among many similar tidbits, that 

“The first thing Americans must understand is that, by design, lawyers are STUPID people. 

They score lower on the Graduate Record Exam than most of all other majors, scoring

slightly higher than average score for blacks and slightly lower than the average score

or women, but more than 200 points lower than Asian engineering majors.

“Many lawyers are divorced, are paying “child support” and alimony to ex-wives (or

two or three ex-wives) which makes their ability to understand the Holy Bible or draft

a simple agreement, much less understand human nature, highly suspect.”

ethicalEsq and Prof. Yabut no longer feel bad about anything we’ve ever said about lawyers. As

we never took the GRE nor filed for divorce, we are happy not to have made the statistics any

worse than they are.


boom! boom! ka-boom!
so many duds…


heading for where
hunting birds are few…
the fox


haiku of Kobayashi ISSA, translated by D.G. Lanoue                                                                                                dunce  j.d.

in the ripples

Filed under: pre-06-2006 — David Giacalone @ 1:58 pm

Zen garden
a dry leaf sticks
in the ripples




Alzheimer’s ward

again father counts

the afghan squares



by Pamela Miller Ness, from A New Resonance 2: Emerging Voices                     breadwine neg

credits: “alzheimer’s ward” – bottle rockets II:1

             “Zen garden” – bottle rockets I:1



by dagosan:

under nana’s afghan –

dreaming homemade 

bread and meatballs

                                                   [Nov 30, 2004]

one-breath pundit  

    • Carolyn Elefant asks “What’s a Fair Rate for Court-Appointed Counsel,” and “Would Biglaw

      Pay More to Help A Legal Aid or Solo Attorney?”  We’ve left comments at MyShingle today

      in response.  Have you?  By the way, the Editor doesn’t think a State should pay any more

      for assigned counsel than it takes to get an adequate supply of competent lawyers.

    • fragile glass Our other frequent commentor, Mike Cernovich, a/k/a Fed84, starts an indepth, four-part series today on the Interstate Wine Shipment Cases, over at Crime & Federalism.  You’ll find him neither dry nor fruity.  I cannot vouch for his bouquet.

November 29, 2004

mass. lawyers still looking out for #1

Filed under: pre-06-2006 — David Giacalone @ 6:00 pm

Two of the biggest lawyer groups in Massachusetts are “challenging a ruling that allows judges in Hampden County

to force attorneys to represent the poor in criminal cases.”  This is one more episode in a consitutional crisis that began when assigned counsel for indigent criminal defendants (called “bar advocates”), started illegal group boycotts in July seeking higher fees.  (AP/Boston Herald, Legal groups challenge judges’ right to force them to take cases,  Nov. 29, 2004)


jailbird neg   The Massachusetts bar advocates are continuing to put their own financial interests above the law, their ethical duties and the needs of their clientele:  — click here to read this entire post and here for a summary of the Editor’s argument that the boycotts are illegal and unethical violations of the antitrust law



the mountain moon              
gives the blossom thief


in the misty day
no window can be seen…
a prison

– haiku of Kobayashi ISSA, translated by D.G. Lanoue

windowless office

Filed under: pre-06-2006 — David Giacalone @ 12:13 pm

autumn day

the empty pillow

glows white



windowless office

a fly buzzes against

my glasses



leaves flying


autumn evening

also nowhere to go

skittering leaf



(Brooks Books, 2000) 



by dagosan:

a mostly-cloudy sampler

of blues, grays and whites

— driving alone

                                       [Nov 29, 2004]

one-breath pundit  

    • Patience Pays and Saves:  NYT reports that prices for flat-panel TVs will fall greatly

      throughout 2005.   But, “We do not want to talk about predictions of price drops,”

      said Lee Simonson, the director of Best Buy’s television division. “We want people to buy now.”

    •  Carolyn Elefant has Commented thoughtfully on our disagreement over mandatory
      pro bono and solos.  At MyShingle today, however, we learn that — while opposing

      mandatory pro bono — she favors forcing “each senior lawyer to train a fixed number of

      junior lawyers” and paying the junior lawyers, to help them establish solo firms.   Go figure.

    • AntitrustProf Blog discusses the possible impact of Raich v. Ashcroft, the interstate wine-

      selling case on antitrust law.   We note that the Mass. Bar Advocates have been arguing

      their group boycott can’t violate federal antitrust law because it has no impact on interstate

      commerce.  Raich could help settle that issue.  And, see Kerr and Fed84 on NYT and federalism.

November 28, 2004

mounds of coal

Filed under: pre-06-2006 — David Giacalone @ 5:49 pm

. . . no, they’re not Santa’s gifts for naughty weblog editors.  We’ve got a much better present for you: a pair of haiku from Rebecca Lilly (use our search box to find more):
First snow
the white mounds of coal
beside the closed station
Cold autumn twilight NewRes2 neg small
the garden slope’s stepping stones
edging out of line
. . . from A New Resonance 2 (Red Moon Press, 2001)
credits: “First snow” — Brussels Sprout 9:3
“cold autumn twilight” — Modern Haiku XXXI: 2

finally touching her face –
“are your fingers
always this cold?”

[Nov. 28, 2004]

yin yang one-breath pundit

  • Thanks to a pointer from BenefitsBlog today, I learned that.

    “Web logs are referred to in Chinese as bo ke, which is phonetically similar to the word ‘blog’, but also has a literal meaning of rich or abundant traveler.” (Asia Times article on weblogs in China, July 22, 2004)

    Hmm, why didn’t they come up with terminology that sounds like barfing?  Such elitists!

  • Jerry Lawson echoes Carolyn Elefant’s complaint, in response to proposed changes in Mississippi
    pro bono rules, that “Solos can’t delegate their pro bono obligation to other lawyers, so why should biglaw attorneys have that ability? ”   As I have mentioned on other occasions to Carolyn, she seems to leave her lawyer skills behind when advocating for solos, and instead sounds like the mother of a juvenile delinquent or like a whiny adolescent, for whom it is always unfair when someone else gets to do something they can’t do.  Seems to me:
    • Being a solo is not like being born into a caste from which one can never escape.  Indeed,
      Carolyn’s shtick is mostly as a cheerleader pointing out the advantages of being a solo, as compared to being in a BigLaw firm.  Here in the real world even Good Things have downsides.
    • What would we say if BigLaw partners complained they should not have to be responsible for
      monitoring the behavior of associates, because solos don’t have similar ethical obligations?
    • Or, they shouldn’t have to pay the bar or CLE fees for any employees, since solos don’t have to?
    Do some rules here on Earth affect the poor differently than the rich, and the big differently than the small? Of course, they do. I’d suggest using traditional equal protection analysis to see whether the differences are malicious, undue or unfair before crying foul — and before crying wolf so often no one cares to listen.

  • It just came to my attention that a Google Search today for “yabut generation” yields no results. prof yabut small
    This weblog did, however, come in at #3 and #4 for the quote-mark-less search yabut generation>.
    As the home of Prof. Yabut, we are happy to use the phrase first right here — “yabut generation”.
    However, there are so many generations that deserve the appellation, that it is impossible to choose one.  The But-Boomers.  Brokaw’s Gratest Generation.  Generations Y-But and X-But, etc.

me and my “pal” professor B

Filed under: pre-06-2006 — David Giacalone @ 2:58 pm

I admit it, I am a weblog free-rider.  I have never left a “tip” at a weblog and don’t expect that

I ever will.    My sentiments about fully-employed lawyers and law professors soliciting handouts

were expressed well earlier this year by MyShingle‘s Carolyn Elefant, in this Comment:

“I don’t like the idea of law bloggers posting ads at their site. — (just like I don’t like

bloggers who pass the hat with “pay pal” requests).  As a business matter, I don’t

know that I’d want to go to an attorney who didn’t have the resources to sustain

a blog site without collecting ad revenues.”

coin plate  Thus, I had to cringe today, when I saw Steve Bainbridge’s post captioned

“A new way to support the blog.”  Prof. B says (like it’s a real treat):

I’ve added a Paypal tip jar to the right side bar as a new way for loyal readers to

support the blog:


My thanks to readers who have supported this blog in the past through my Amazon

Associates programs or by clicking on the ads from my Blogads sponsors. (Please

don’t forget to click on one of my Blogads to encourage my sponsors!)

This new tip jar is at the very top of the righthand margin.  I woulda thought conservatives and

libertarians had more pride than this — not to mention lovers of fancy cars, wines and cigars.  I’d

like to assure Steve that his weblog visitors are smart enough to find him and ask directly how to

leave a tip — they don’t need constant reminders for “impulse charity.”  Also, if law professors really

want to get extra credit for weblogging, they might want to lose the BillBlog [ BlogBoard? ] image.


You may have noticed that I frequently link to posts by Steven Bainbridge.  I want to assure him

and my readers that I have nothing personal against Prof. B.  I do have, however, a limited amount

of time and energy for surfing the weblawg universe, and stopping by his place is quite convenient

 for me, as it gives me

    • Lots of interesting material
    • Lots of things I agree with
    • Lots of things I disagree with
    • Lots of self-righteous religiosity that I believe needs to be countered
    • Quite a bit of inconsistent — “cafeteria” — application of ideologies and principles.

So, before the Thanksgiving weekend is through, I want to say that I am sincerely grateful that Prof.

Bainbridge’s “eclectic” weblog exists and I wish him well.  [E.g., I love the irony that, just yesterday,
Prof. B insinuated that an author of a book on politics took a public position “to sell those books

and keep those speaking engagements coming.”   I couldn’t pay some one to say this kind of stuff!]



donkey  You can find a selection of haiku by Kobayishi Issa featuring beggars here.

Here’s a sampling:

begging actors
play one more song!
spring snow

autumn wind–
a beggar looking
sizes me up



they have kids maybe
bridge beggars
calling fireflies



begging actors–
even the horse’s ass
gets a blessing


begging at my gate
the geese lose


ooh neg

Kobayashi Issa, translated by D.G.Lanoue

November 27, 2004

getting kinky — a cuban cigar and Prof. B

Filed under: pre-06-2006 — David Giacalone @ 8:34 pm

After Prof. Bainbridge discussed George Friedman and asked “Why Iraq?“, Professor

Yabut sought the wisdom of Kinky Friedman from ‘Scuse Me While I Whip This Out :
Reflections on Country Singers, Presidents and Other Troublemakers, which was published

last month.  Although the Kinkster doesn’t tell us “Why Iraq?”, he undercovers an Iraqi-Cuban

connection in London that must surely concern George W. Bush — “Phil the Tobbaconist

mentioned that Fidel Castro personally supplies Cuban cigars to Saddam Hussein.” (at p. 83). 

K. Friedman has smoked cigars in the White House with both Bill Clinton and Geo. W. Bush

(but I will nonetheless hold my nose and plug him). 

kinky sold  If you’re feeling nostalgic, you can hear samples from Friedman’s first  

album, Sold American, here (or order the 30th Anniv, edition, Sept. 2003), with such

classics as “Get Your Biscuits in the Oven and Your Buns in the Bed” and

“High On Jesus.”   Also, check out his 2003 dvd,, Proud to Be an A**Hole

from El Paso  ( 2003). (dvd cover image here, Sold American cover here)


fly away, firefly
my hut’s smoky!


the great temple’s
smoking ban…
spring rain


the nightingale
makes a face in the smoke…
mountain home

Kobayahsi ISSA, translated by David G. Lanoue

                                                                                                                                                  Kinky Friedman . . . kinky dvd

one-breath pundit  

  • A far more serious note about Iraq comes today from NYT columnist Nicholas D. Kristof:

    “Iraqis are paying a horrendous price for the good intentions of well-meaning

    conservatives who wanted to liberate them. And now some well-meaning

    American liberals are seeking a troop withdrawal that would make matters even


    . . .


    “Those hundreds of thousands of Iraqi children, whose lives we placed at risk by

    invading their country, are the reasons we should remain in Iraq, until we can hand

    over security to a local force. Saving hundreds of thousands of lives is a worthy

    cause to risk American lives for, even to die for. “

  • tyler 1st bday  To close with a smile:  Happy 1st Brithday to Tyler, our  favorite Bag Boy

Reach for the moon, Tyler!  As the great Issa enscribed on his self-portrait:


Gimme that moon!

cries the crying


m’m! m’m! good!

Filed under: pre-06-2006 — David Giacalone @ 1:53 pm

What’s better than a visit from the Campbell Soup Kids?  Another bowl of grandma’s special

holiday soup, and a visit from Paul Miller, a/k/a paul m:



snow flurries
candlelight moving
window to window


creek overlook

a flat rock

becomes uncomfortable



a coyote call

goes unanswered

evening star



coyote moon small  credits:  “creek overlook” – The Heron’s Nest

            “a coyote call” – Acron No. 6 (Spring 2001)

            “snow flurries” – The Heron’s Nest I:4 (December 1999)


a third helping

of Thanksgiving politics 

I bite my tongue 

                                     [Nov. 27, 2004]

one-breath pundit  

    coyote moon sn






November 26, 2004

a hearse and a grinch

Filed under: pre-06-2006 — David Giacalone @ 1:20 pm

blowing leaves . . . 
the shiny hearse
turns the corner




mountain spring–
in my cupped hand
pine needles


. . . .  from Open Window: haiku and photographs by Michael Dylan Welch 





by dagosan:





Black Friday –
out shopping
for stretch-waist jeans





   Mike at Crime & Federalism states that “unlike the left, we Federalists are diverse.” Since no ideology  can have an answer for every problem, thoughtful persons often escape the confines of ideo-labels.   

— and, of course, so do practitioners of hypocrisy and “cafeteria” expediency.   And, Mike:
– Lefties come in different flavors, too, even if some — as in every cult — only spout one brand of orthodoxy.


– Sometimes, government action actually preserves individual liberty.  At other times, it helps ensure that individuals don’t use liberty to harm other people.  No mantra has all the answers.  

tiny check  If the hearse haiku above seemed too dismal, I suggest reading The Hearse You Came in On, the
first novel in Tim Cockey’s enjoyable series featuring Hitchcock Sewell, undertaker and reluctant sleuth.
red check smaller  Traditional GrinchEsq Musing:  In a country where you don’t have to wait for some guy on a camel or donkey to arrive to have a shopping day; and where almost everybody already owns too many things; why do we have a “Holiday Shopping Season” kicked off by a ridiculous stampede, and then give so many and such expensive gifts on a day meant to celebrate a saviour, or love, or one’s heritage?


November 25, 2004

thankful for . . .

Filed under: pre-06-2006 — David Giacalone @ 10:01 am

. . . big sis and li’l bro
Lissa & James, 2004
first love
in the summer gazebo . . .
little brother won’t leave

Pamela Miller Ness,  driveway from childhood

Linda & David, 1954
our kids on the swing bike sketch
old enough to push  each other
april evening
children’s playground
a mother reads
the parenting manual

“he touched me!”

“she touched me first!”

— are we there yet?
… by dagosan

[Nov 25, 2004]

p.s. I’m very thankful for brothers, too!

. . . and, thankful for weblog & haiku friends! swings gray

November 24, 2004

issue-spotting for faith-based law schools

Filed under: pre-06-2006 — David Giacalone @ 8:55 pm

Earlier today, ethicalEsq hijacked this website in order to discuss religious law schools   prof yabut small

(see our previous post), raising the ire of the customarily stoic haikuEsq.  Thankfully,
Prof. Yabut came out of retirement to compose the following exercises in issue-spotting.

Go, ahead, test your legal knowledge and your faith.


Family Law:  In the case of Joseph of Nazareth v. B.V. Mary, the husband is suing for

divorce and custody of the couple’s infant child, Jesse.  Petitioner claims that Respondent
will not fulfill her marital obligations and has been seen in the company of Three Magi, using

frankincense. Respondent counters that Joseph is not the biological father of the infant and

married her knowing of her condition and commitments; she refuses to speak the name of the

purported father.  DNA evidence is not admissible in this jurisdiction.   Should the divorce

be granted, which party should have custody, and is another Visitation appropriate?


noah ark  Landlord-Tenant  In the matter of Noah v. Al. God . . .


— click here to read this entire posting, which also covers Criminal and Constitutional Law issues, plus

an ark-full of other questions for Additional Credit —



today even the pigeon
says a prayer…
first winter rain


a hot bath
a prayer
then cherry blossoms!

 Issa, translated by David G. Lanoue  




by dagosan:

skinny arms akimbo –

old scarecrow 

sapling fir
                                    [Nov 24, 2004] 


p.s.   The various alter egoes responsible for this weblog wish one and all a Thanksgiving      

filled with love and gratitude.  We also promise to return to one-breath punditry immediately.

religious law schools offer no salvation

Filed under: pre-06-2006 — David Giacalone @ 6:20 pm

Thanks to an article in the New York Times earlier this week, many Americans are now

aware of and talking about the existence of faith-based law schools.  Naturally, members

of the weblog community (like Professors Althouse and Bainbridge, and many others) have

also been discussing the topic.  As is usually the case, the Editor of this weblog is skeptical

about any proffered panacea for complex problems — especially, when the legal profession

will have a big part in the outcome. 


podium sf neg  Will faith-based law schools be the salvation of the American legal profession, justice

system, government or society?  “Not by a long shot” is my best guess. 


— click here to read this entire post, which concludes: 

Catholics and evangelical Christians can be great lawyers, legislators and citizens.  But legal education will not be improved through religious indoctrination or blinders. 


one by one
don’t the pennies drop?
winter prayers




harvest moon-gazing
priests, samurai



Issa, translated by David G. Lanoue     


update:  You will find a lighter treatment of this topic at our post issue-spotting for faith-based law schools.

Also, see Dagger in Hand.

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