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

October 31, 2005

alito — take a deep breath

Filed under: pre-06-2006 — David Giacalone @ 9:44 pm

[Note: The serious comments on Judge Alito start

with the “afterthought” section below.  But, don’t let

that stop you from reading the lighter stuff.]


The nomination of Samuel Anthony Alito for the U.S.

Supreme Court probably has quite a few lawyers and

law students Turning Italian right about now.  If they

don’t have time for a deep-immersion course in the 

language, I want to recommend Don Cangelosi’s

as a practical substitute for serious study. [you can

even look inside the book here for quick pointers]


ItalianWW  After spending a little time with Ultralingua,

I can tell trivia lovers that “alito means “breath,” as

well as “puff,” in Italian.


puffs from the right

huffs from the left


        dagosan:   [Oct. 31, 2005]


Although “scalia” does not appear to be a word in the  scales rich poor

Italian language, scala” is a scale (measure) or staircase

(think escalator).  Hmm.

tiny check  A note to ethnology buffs:  If Sam Alito is anything like

your humble Editor, he does not consider himself to be

“Italian.”  He’s American and, if you insist on further

ethnic classification, he’s Italo/Italian American.  Italian

ancestry is a very good thing, but no one’s taking the

boat back to the Old Country to stay.


orig.  AlitoSA


afterthought (midnight):  Blue Mass Group weblog has a

very interesting post entitled “One Liberal’s Positive View

of Alito.”  The remarks of a progressive democrat who

clerked for Judge Alito are reassuring and well worth

your attention — especially if you are tempted, like

the self-promoting Chuck Schumer, to react very nega-

tively to Judge Alito, merely because he is clearly a

conservative jurist.   Go now, read Katherine Pringle’s

assessment of her old boss.  (via SCOTUS Blog)

update (Nov. 1, 2005): There are two New York Times pieces

today for those of us who are left-of-center, don’t have to please

constituencies, and want to give Samuel Alito thoughtful consid-

Separated at the Bench,” Nov. 1, 2005).  And, here’s a question

that I believe is worth pondering:

If Judge Alito would indeed be an independent, highly
respected, consensus-building, conservative Justice,
couldn’t he be the best possible person to counter
the extremism of Justice Scalia (pointing out over-

reaching, finding narrower grounds, etc. ) on a Court

that is very likely to have a “conservative” majority

for a very long time?

update (Nov. 2, 2005): In the run-up to the Alito Senate hearings,

I will list here links to other materials from “unexpected” sources

that caution against a knee-jerk reaction to Sam Alito’ nomination.

From TalkLeft: A Defender Praises Alito (Oct. 31, 2005).

Peter Goldberger, a Pennsylvania lawyer, starts his

description of Alito with: Don’t guess at Judge Alito’s

predilictions. I am a full-time criminal defense appellate

litigator, and more than half my cases are in the 3d Circuit.

Alito — unlike some judges we both know — does not “twist

the facts, ignore facts, and even make up facts to make the

facts fit the argument they want to make.” He is intellectually

honest in the highest degree.  . . . He is very conservative,

but he is neither knee-jerk nor dishonest.”


From Blue Mass Group: The Alito MoveOn Didn’t Mention

(Nov. 1, 2005): David Kravitz shows how easily the record

of any long-sitting judge can be manipulated.  Kravitz

notes:  “All that this – or any of the other “lists” floating around –

can prove is that Alito has been a judge for a long time; that

 he has decided a lot of tough cases that could have gone

either way; and that you should be very careful about reading

too much into selective “case summaries” proffered by interest

groups with an agenda.”  He continues:

“Bottom line: make up your own mind.  Do some

research on non-partisan sites (SCOTUSblog is

always a good place to start, and any Alito opinion

published in 1996 or later should be available at Findlaw). 

And wait for the confirmation hearings, where you can

bet that Alito will be questioned for hours about many

of the opinions that the lefties are worried about – that,

after all, is what the hearings are for.”


                                                                                                                   scales rich poor neg





Alito & Antitrust

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

of the AAI Advisory Board, reviews the antitrust record of Judge Samuel Alito,

and concludes that Judge Alito “is unlikely to be a supporter of antitrust en-

forcement.” (“Sam Alito and Antitrust,” Oct. 31, 2005)


“BertFoerS”  AAI President Albert Foer gives this summary:

“[Freed] found no relevant articles by Judge Alito, but identified a

small group of cases in which Alito sat as judge where antitrust

issues arose. While one must to some extent read between the

lines in order to find the outlines of a position, it appears that Judge

Alito is not favorably disposed toward the private enforcement of the

antitrust laws. The one case in which he seemed most friendly to

an antitrust claim was decided over fourteen years ago. Mr. Freed

concluded from this research that “Judge Alito is not likely to be a

supporter of antitrust enforcement.”

Freed, a well-respected expert on class actions and complex litigation,

who is a Principal in the Chicago firm of Much Shelist, briefly discusses

eight Alito antitrust cases from the 3rd Circuit.   The cases are:


1.  LePage’s Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) (in dissent) cert. den.,

124 S.Ct. 2932 (June 30, 2004).


2.  Joint Stock Society v. UDV North America, Inc., 266 F.3d 164

(3d Cir.2001) (wrote opinion)


Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc.,

165 F.3d, 221 (3d Cir. 1998) (wrote opinion).


Barton & Pittinos, Inc. v. SmithKline Beecham Corp., 118

F.3d. 178 (3d Cir. 1997) (wrote opinion).




David Lerman v. Joyce International, Inc., 10 F.3d 106

(3d Cir.1993) (wrote opinion).


In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144

(3d Cir. 1993) (Alito sought rehearing en banc, which was denied) . 


TICOR Title Insurance Company et al. v. Federal Trade Comm-

ission, 998 F. 2d 1129 (3d Cir. 1991) (Alito dissented).   


 Ralph J. Miller, M.D. v. Indiana Hospital et. al., 930 F.2d 334

(3d Cir. 1991) (Alito dissent)





In Ralph J. Miller, M.D. v. Indiana Hospital et. al., 930 F.2d 334 (3d Cir. 1991),

Judge Alito refused to apply the State Action exemption to the antitrust laws.

The case involved suit by a physician who had staff privileges revoked. He

sued a state hospital and a number of doctors for antitrust violations. The

district court granted summary judgment to the defendants under state-action

antitrust immunity provided in Parker v. Brown. On appeal, the Third Circuit,

in an opinion written by Alito, reversed, holding that it had not been established

that Pennsylvania actively supervised the peer group decision which resulted

in the revocation of staff privileges.  This is the most-recent antitrust case in

which Judge Alito decided favorably to the plaintiff.


alito – 

the plaintiff’s bar







let the kids enjoy Halloween

Filed under: pre-06-2006 — David Giacalone @ 2:08 pm

vampC Our plea from a year ago is as fresh as ever – vote for a kid-centered halloween. This morning’s post at Overlawyered.com shows that the spoilsports are at it again this year in Canada (don’t want to upset the wiccans). And, in Hammonton, New Jersey, the school district  nbc10news.com):

“decided to do away with scary outfits and the traditional procession because they were worried about too many unidentified family members descending on the school.


So, no costumes in Hammonton schools — instead, they’ll be having a (very exciting) “Orange and Black Day.” There are no details on just how you might celebrate O&B Day.


halloween twilight
again this year my son waits
alone by the door

……………………… by Roberta Beary, The Unworn Necklace (2007)
1st place, Tokutomi Memorial Haiku Contest 2006


tawny sunset
and a family of crows –
empty treat bowl

……………………………………….. dagosan [Oct. 31, 2005]

blackCatNF Of course, good haijin everywhere will be penning haiku and senryu for Halloween. Check out today’s Morden Haiku, and Saturday’s, too. There’s also a treat for you from David at haikupoet.com.

Also, DeVar Dahl

frozen pumpkin-
the little ghost’s
parka and mitts

and Roberta Beary

Halloween twilight
army helicopters
fill the sky

. . . were among a couple dozen poets contributing to the Shiki Kukai Halloween contest in 2001. Click to find over 40 other one-breath Halloween poems.


blackCatNV Preter-naturally, the always-generous ed markowski has been brewing a batch of goodies for haikuEsq to hand out to you this Halloween Day (in addition to the pair we shared yesterday):

halloween snow
the yeti’s
tiny footprints

halloween party
she qualifies each sentence
with ‘honest’


halloween mail
a bill arrives
from the plastic surgeon

devil’s night
father john’s profile fills
the confessional screen

…………………………………………..ed markowski

batMoonN The f/k/a gang hopes everyone, young and old and in between, will have a fun and safe Halloween. We may have a few more haiku treats throughout the day, so don’t be to shy to knock on our door again.

– got time to kill before trick-or-treating? Float over to Blawg Review 30, for the Denise Howell-ween special.

who are you DAGself
Goth kids yell “trick-or-treat”

……………………………………………………. by dagosan [Oct. 31, 2005]


October 30, 2005

halloween tricks: pols vs. sex offenders

Filed under: pre-06-2006 — David Giacalone @ 3:57 pm

wolf dude neg The scariest sights I’ve seen so far this trick-or-treat season are the stern faces and contorted postures of politicians, masquerading as super-heroes in the fight to protect our children against a horde of halloween sex offenders. As the New York Times described earlier this week (“Sex Offenders See New Limits for Halloween,” Oct. 26, 2005):

“All across the country this year, local and state authorities are placing registered offenders under one-night curfews or other restrictions out of fear that in only a few days, costumed children asking for candy will be arriving on their doorsteps.”

Examples: “In Westchester County [NY], high-risk sex offenders on probation will be required to attend a four-hour educational program on Halloween night. In New Jersey, state officials are instructing paroled sex criminals not to answer their doors if trick-or-treaters come knocking. And in counties throughout Texas, parolees with child contact restrictions are being told to stay away from Halloween activities, even family gatherings.”

Such restrictions are also being imposed and — just a few days before elections — heavily publicized in Wisconsin (article), Kansas (article), Delaware (article), and Minnesota (article) . It’s such a sexy issue for politicians this year, that Michigan State Rep. Fran Amos, R-Waterford, rushed to submit House Bill 5377 on Thursday, October 27. The bill would prevent sex offenders from handing out Halloween candy or participating in any other Halloween activities. Of course, it’s too late to “help” for Halloween 2005. (see this and that)

follow-up (October 18, 2010): See the informative weblog piece by David Hess, The New Urban Myth—The Danger of Registered Sex Offenders at Halloween.

i only tell the priest
so much

… by ed markowski

vampC There must be a good reason for all this extra protection at Halloween, right? In the NYT article, “Edward Bray, the acting deputy executive director of the NJ State Parole Board, said the plan was necessary.” Bray brayed:

“The State Parole Board has been trying in the last year to be more proactive. . . . And Halloween seemed like a time that was ripe for so many potential abuses and risks to children.”

In “Megan’s Law vs. Halloween” (Oct. 26, 2005), Prawfsblawg‘s Dave Hoffman asks cogently “if the state had empirical evidence of a higher-than-average rate of illegal behavior on Halloween?” Not according to the NYT article, which stated: “In effectively detaining sex offenders on Halloween, most officials say they are not responding to any attacks known to have occurred on past holidays.” For those who don’t trust the Gray Lady:

An editorial from Indiana notes today that: “there are no known attacks of trick-or-treating children on past Halloweens.” (KPC Media Group, “Offender series shows need for open eyes, Oct., 30, 2005). Also, per CBS3.com, the Spokeswoman for the Delaware Department of Corrections “says no Halloween incidents involving sex offenders and trick-or-treaters have been reported in Delaware.”

Across the border in Canada, the Halloween (non)experience sounds very similar (TriCityNews [Victoria],No Halloween for sex offenders,” Oct. 30, 2005):

“Dave Keating, Vancouver Island area director for Corrections Canada . . said he has never heard of a sex offender on federal or provincial parole who has preyed on trick-or-treaters.”

wolf dude neg So far, I seem to be the only weblawger who believes there’s something unsavory, in this rush (just in time for the elections) to “do something” and “be proactive” to “protect our children” from this year’s favorite political whipping boy, the sex offender

[For an example from New York State, see North Country Gazette, “Pataki Advocates Enforcing Halloween Curfew on Sex Offenders,Oct. 28, 2005]

battery weakened
the low, slow laughter
of a demon

…………………….. John Stevenson from Some of the Silence

Trenton lawyer John S. Furlong, while admitting that New Jersey has the right to impose the Halloween restrictions on his clients, put the problem very well ((AP/msnbc, “NJ issues curfew for Offenders,” Oct. 26, 2005):

“My own view is that it’s unfair, expensive and inane. In other words, it’s just stupid. Nobody is going to be safer. Nobody is going to be less at risk. No purpose is served other than the arbitrary abuse of power by people who can.” He added: “The best monitors in the world for children are their parents. You want to keep your kids safe? Go trick or treating with them.”

Today’s editorial from Indiana’s KPC newspapers also makes several very important points:

“Because abuse of our children tears at our hearts, it is tempting for people to go over-board.”

“For example, in many states local and state authorities are placing registered offenders under Halloween night curfews or other restrictions. However, there are no known attacks of trick-or-treating children on past Halloweens. “Rather than one night of over-reaction, we encourage alertness every day and night of the year. One-fifth of the nation’s 500,000 sex offenders are “missing” — meaning they have failed to register and no one knows where they are. That underlines the importance of teaching children not to talk to strangers.

“On the other hand, since most sex offenders are known to their victims — and possibly could be the new neighbor who moved in next door, and who now invites youngsters over to play in his pool or watch TV — it’s even more important to keep track of where your children are and what they’re doing.”

batSN In addition to pointing out that “The vast majority of sex offenders remain at large, undiscovered and unmonitored,” victim’s advocate Douglas Larsen sums up his strong reaction to these “all show/no go” laws:

“Why am I being so negative? Because these kinds of laws generate a lot of publicity, and tend to lull the public into thinking that something worthwhile is being accomplished. But funding for Child Abuse Prevention efforts remains criminally low; Child Abuse Prevention agencies remain

horribly understaffed; education and training of children remains unacceptably low, and monitoring and supervision of sex offenders is still dangerously inadequate because budget cuts have completely over-stretched the capabilities of the officers that remain. A high-profile law like this Halloween restriction gives elected officials a way to seem like they’re tough on sex offenders, without having to do anything that would cost any money or make a significant difference in the problem.”

Prof. Hoffman has pointed out that “there are costs (perhaps ones we can justify) to rules like this,” relating the story of a low-level risk offender in NJ, who will not be able to take his own children out trick-or-treating. That is just one example of how over-reaching in restrictions actually makes it harder for sex offenders to make their way back into normal community and family life.

goblins at the door
in the darkness behind them
a cigarette flares

…. by John Stevenson from Some of the Silence

Similarly, the spokesperson for the Kansas Department of Corrections pointed out this week, talking about the State’s offender registry website, that neighbors’ fears about someone living on their block could be overblown. That’s because many sex offenders’ crimes don’t involve children, and some people on the list in Kansas are teens convicted of having sex with an underage girlfriend. (Lawrence Journal-World, “Experts: Vast majority of sexual abuse close to home,” Oct. 30, 2005)

tiny check With most States urging parents to check websites, courthouses and police stations for information on sex offenders living in their neighborhoods, I think there is plenty of opportunity for citizens — perhaps especially young males — to take the “problem” into their own hands and punish or harass sex offenders on Halloween. These overblown promotional campaigns might, then, be the cause of some ugly vigilantism.

There also will be plenty of financial costs involved — with probation staffs working all night in many States, attempting to catch cheaters and deter violations, and with police officers asked to help with enforcement. Of course, while no one has examples of genuine sex offenses against children on Halloween, we all know that there are plenty of actual crimes committed that night — and more teen deaths caused by alcohol than during prom season. Cruising around looking for offenders answering their doors or displaying Halloween decorations will only make the job of local police even more difficult that night.

Asked about the law proposed just three days ago in Michigan, Monroe County Sheriff Tilman Crutchfield — showing that opposing the bill is politically-sensitive —said he supports such a proposal, but added that officers would have to catch people in the act. (MonroeCountyNews, “Halloween bill hard to enforce, police say,” Oct. 28, 2005)” Sheriff Crutchfield explains:

“It is a good idea, but it would be difficult to enforce . . . . It would be very difficult to prove unless that person was standing at the door handing out candy.”

“For it to work, he said, police officers would have to be provided a list of sex offenders. Officers then would have to drive around checking addresses and then catch the person in the act. Because deputies have a limited amount of available time, especially on Halloween, personnel issue would come into play.

“And there is only a two-hour time frame for the entire county. I don’t think it’s a bad law; it would just be difficult to enforce.”

This is not, in my estimation, a close call. The Halloween Sex Bogeyman laws and restrictions have far too many costs, are far too likely to create a false sense of security among parents, and seem certain to have no real effects, other than giving grandstanding politicians a boost in the polls. I hope my fellow weblawgers will voice their opinions, and that parents will keep a close eye on their young children and a skeptical ear when dealing with their teenagers and their politicians this Halloween season.

For some fun and safety education, click for the NYS Troopers Halloween Safety Coloring Book.

update (11 PM, Oct. 30): Mike Cernovich, wearing his Blawg Review that, pointed me toward Will Baude’s post, “Sex Offenders and Statutory Authority,” which raises legislative delegation issues with regard to the added parole restrictions.

update (Oct. 31, 2005): There has apparently been at least one major Halloween crime involving a sexual predator. Walter Olson reminded me this morning of the infamous Gerald Turner, dubbed the Halloween Killer, after the 1973 rape-murder of 9-year-old Lisa Ann French, who disappeared while trick-or-treating in Fond du Lac, Wisconsin. The terrible incident has led to much experimentation with sexual predator laws. Walter covered Turner at Overlawyered.com in 1999, when he won a settlement with Waste Management, Inc. after the Wisconsin Department of Workforce Development found evidence that Turner had been discriminated against unlawfully when it refused to hire him for a job at a recycling center. [see JSonline, Sept, 21, 1999]

checked box The Halloween Killer’s case gives us two important reminders for Halloween safety: (1) his victim, although only 9 years old, was trick-or-treating alone, and went to the home of a stranger; and (2) Turner had no prior record and thus would not have been subjected to the Halloween restrictions being applied to those on parole. Again, then, parents must not be lulled into a false sense of security by the much-publicized efforts tonight against sex offenders.

Also of interest, concerning Turner:

tiny check Joel McNally at Shepherd Express noted in 1998 that Turner had for 5 years after his release from his prison sentence, “lived and worked peacefully in Milwaukee. He didn’t cause any more trouble. But a lot of so-called law-abiding citizens did. They were the ones who vandalized Turner’s home and created a public uproar that caused him to lose his job. Political leaders and judges were the ones who spewed hatred and made a mockery of equal protection under the law.”

tiny check According to this article, Turner became part of an ugly campaign for a Wisconsin State Senate Seat in 2000, between Democart Mark Meyer and Republican Dan Kapanke. An “advocacy group” named Americans for Job Security, an ad hoc entity that spoke largely for health insurance groups in the state. An ad attacked Meyer, saying he would let felons — like Gerald Turner, the Halloween killer — apply for any job upon their release. Meyer won the election.

jailbird neg As of April 2004, Turner was back in prison, with his parole revoked for having pornographic pictures on a computer hard drive at he halfway house where he resided. (WKOW news)

update (October 9, 2008): See our post “more scary Halloween laws against sex offenders.”  It discusses a lawsuit by the ACLU against a new Missouri law requiring sex offenders to stay inside, have no outdoor lights, and post a “No Candy or Treats at this Residence” sign on Halloween.

the government issues
a report on the war

… by ed markowski

two pirates smooch
on the overpass —
the Pumpkin Patrol rousts them

batMoonN ……… by dagosan

October 29, 2005

pumpkin place-holder

Filed under: pre-06-2006 — David Giacalone @ 2:54 pm

Why are you inside on this beautiful Saturday?  Since you’ll have
an extra hour tonight (after turning back your clocks), please come
back later for punditry and one-breath poetry.
pumpkin neg Go here for our pumpkin haiku page.

two wilted pumpkins

and all the candy eaten –

October 30

[See haikupoet.com, Oct. 28, 2005]

perched on
the sumo’s belly —
one large pumpkin
“witchbrewS”  Check out a spooky Halloween haiga
from Matt Morden – click here, if you dare.
tiny check Thanks to the folks at ApartmentTherapy “witchbrewSF”
for linking to our pumpkin haiku page.

update: 10 PM EDT:  Your Editor played too hard — autumn
bocce in the park — and ate too much to do any posting tonight.
Blame Yu and John, who we’ll let do the work this evening:
after the party
I draw
a diagram
autumn rain
in my ways
almost dusk
no dragonfly has settled
on my kayak
afternoon sun
the wake of a mallard
flickers on the birch

October 28, 2005

agita & attention deficit disorder

Filed under: pre-06-2006 — David Giacalone @ 7:51 pm

The bad news: Today, I seem to have the attention-span of most

of my former (alleged) juvenile delinquent clients.  As a result,

I’ve labored long — way too long — and am posting late.


The good news: You get a variety of (almost) one-breath



boxer smf  Throughout my life, some of the nastiest words I’ve ever heard

were prefaced with “don’t take this personal” or “it’s only business, not

personal.”   Nonetheless, I guess I do take Prof. Bainbridge at his word

when he says, regarding the fight against the Miers’ nomination:  “For my

part, it was always business, not personal. It was a matter of principle.” 


Steve seems worried about offending his usual allies and says, “Here’s

hoping we’ll be on the same side of the next round.”   For whatever my two

cents is worth, I say:

When you get mean and nasty, or gleefully link to   penny sm penny sm 

the poison pixels of others on the Net, you are getting

personal — especially when it comes to the collateral

damage done to individuals such as Harriet Miers.  A good

rule of thumb:  Mean is personal  — even if the topic is

business (and since neo-cons hate anything in the middle,

it should be easy to avoid mean). Another good guideline: 

Would you want your ten-year-old to read what you just wrote

about another human being?                                                                               


“spiltwine”   My NYS Attorney re-registration papers arrived in the mail

today. Inside was an insert about the NY Lawyer Assistance Trust.

It’s a good reminder to all lawyers and law students that there is plenty

of help out there for those who are struggling with alcohol or substance

abuse.  The insert contains this helpful Questionnaire to help one

determine if she or he has a substance abuse problem.  It being ADD

Friday, however, I want to make a much less lofty point.  Hey, LAT, 

reword the very first question, please.  It asks:

1. Are my peers, friends or family alleging that my drinking

or drug use is interfering with my work?  [emphasis added]

Is somebody trying to sound like a lawyer?  “Allege?” Most of my “peers,

friends or family” eschew that “a”-word  when discussing my actual

or probable flaws.  When not “asking about” them, they tend to assert

or assault — they don’t worry about reasonable doubt and constitutional



tiny check Lying under oath:  I don’t know if Lewis “Scooter” Libby is guilty

as charged (although every indication seems to be that he is).  But,

I do believe that lying under oath is a very serious crime, no matter

the subject.  We can usually assume politicians will distort the truth

when it is advantageous to do so.  But, they have no leeway to do so

under oath.  Which is why I supported impeaching Bill Clinton, despite

my party and political leanings. 



alkas  The Ag-nonymous Editor of Blawg Review, wrote to me overnight,

concerned that I might not know the origin of one of my favorite words,

agitaEd sent me this link to a medical website which explains:

Agita: Heartburn, acid indigestion, an upset stomach or, by

extension, a general feeling of upset. The word is Italian-American

slang derived from the Italian “agitare” meaning “to agitate.”

That launched me on a lengthy tangent, in which I discovered a fuller 

and fun discussion of agita at The Word Detective, which includes:

You won’t find “agita” in most dictionaries, although it is a

quintessential Italian-American slang word. Strictly speaking,

“agita” is a stomach upset or heartburn. But “agita” can also

mean that special kind of existential dyspepsia of the soul you

get when absolutely everything goes wrong. Comedian Jackie

Mason has explained “agita” as “when you have been aggravated

to the point where it feels like you have a serious migraine headache

throughout your whole body.” “Agita” is thus more or less the Italian-

American equivalent of the Yiddish “tsuris” (“misery”), an equation

not lost on Woody Allen, who made a song about “agita” the center-

piece of his 1984 film “Broadway Danny Rose.”

From The Word Detective, I careened around the Web, until I found lyrics to

one of the many ditties within Broadway Danny Rose about agita.  I believe

they will help elucidate the concept:



               (by Nick Apollo Forte)


Una two!

My gumba in the banzone
When I eat, he gets a treat
Like a canzone
He enjoys every meal
Every bite that I steal

My gumba in the banzone
Za da da da da|boom cha boom cha
Za da da dum|cha boom cha boom
Some people like their pizza,|some people like-a suffrite
And others like hot pepper|on everything they eat
You’ll hunger with a vuole|to taste that baccala
Then all at once you think,|”Will I answer to gumba?”
Ba ba ba ba bum|cha cha dum
Ba ba ba ba bum|cha cha dum

My lovely, lovely woman,|I hate to see her cry
But when I start to mangia,|I get the evil eye
My vuole’s getting stronger
Ah, the hell with my gumba
Then I get it from my woman,|che da botts a na sciatta

My gumba in the banzone
When I eat, he gets a treat
Like a canzone
He enjoys every meal
Every bite that I steal

My gumba in the banzone
Za da da dum|cha boom cha boom


aspirin   The folks at Sick of Lawsuits (linked by RiskProf to Sen. John

Cornyn) say:

“Personal injury lawyer advertisements often use misleading,

inflammatory, and baseless claims to recruit plaintiffs to join

lawsuits. These deceptive claims can confuse and scare

consumers into thinking they have been harmed. This is

particularly a problem when irresponsible ads targeting

healthcare services and providers scare patients, causing

them to stop necessary treatments before consulting with

their physicians.”


“We urge the FTC to create stricter guidelines for disclosures

on personal injury lawyer advertisements.”

We’re not impressed.  Beyond the fact that it is mostly a matter for

State enforcement, the f/k/a gang is pretty sure the FTC Act already

is more than strong enough to combat actual misleading, deceptive

and baseless claims.   Like SoL, however, we do urge consumers

to talk to their doctors before stopping a medication featured in a

lawyer’s advertisement.



alkas  Speaking of agita, I just lost the text to two lengthy blurbs.

One of which invited you to enjoy a sneak preview of the Nov. 2005

edition of roadrunner haiku journal V:4.   For now, I’ll just say it has

haiku from well over a dozen excellent haiku poets (and even from  

that guy who keeps taking credit for dagosan‘s workproduct). 


Here are two one-liners from Roadrunner  V: 4 by jim kacian: 




       after the ambulance sirens still there


                                                   roadrunnerAA orig.


                                    different again tonight the same stars’ wobble





just baked my first pie –

not one poker face

in the whole darn family


                   [Oct. 28, 2005]



“tinyredcheck”  Until some publisher is smart enough to collect and publish

the work of haijin Roberta Beary, I’m gonna to encore a few of

my favorites:




autumn breeze

the new smell

of my red jacket




school photo

the frown my sister

grew into



far from home
an empty swing
half my size




“school photo” – penumbra 2004 haiku contest, hon. men]

“far from home”: (for Anita Virgil)  in Frogpond XIX:3 (1996)


                                                                                                                  swings gray


October 27, 2005

Ozzie dumps Harriet

Filed under: pre-06-2006 — David Giacalone @ 2:52 pm

She once called him her “Sweet W” and the smartest man she knew.

But, that didn’t stop the Wizard of Oz — Chief Executive of Emerald City

— from jilting Harriet Quagmier, his longtime courtesan, this morning. 

Calling it only a change in titles, the dispirited Harriet is expected to

remain at the Wiz House long enough to save face.


O&HNelson  orig.


There have, of course, been rumors of a break-up for weeks.  Some

sources blame it on angry in-laws, others on religious differences.

Palace gossip has described shouting matches with epithets such

as “brainless,” “heartless” and “cowardly.”  Others say the Wizard

could no longer trust Harriet to keep his secrets behind that curtain.


                                                                                orig.  DorothyScarecrow


At the other end of the Yellow Brick Road, there is much talk — among

both nominally-loyal noblemen as well as rivals — that the Wizard already

has a replacement for Harriet.  Shockingly, it is unknown whether the

next courtesan is male or female, West Coast or East Coast, strict or



The f/k/a news organization will be following this story ’round the clock,

but is admittedly confused over the cast of characters.  It seems clear

that the Wizard is not taking advice from the Good Witch of the North;

whether Harriet’s archrival, the Wicked Witch of the West, has his ear

(or other parts of his anatomy) is still unknown. 



On the other hand, names as diverse as Thorny Thornberry, Herb Darby,

Doc Williams, and Butch Barton, have been suggested as Harriet’s

replacement, along with two younger men referred to only as Wally and

Barry, and Constance Edwards, a legal secretary.   We would not be

surprised to hear more gossip about other women, soon.


Stay tuned.




coffee shop . . .

   the only empty seat

   still warm


diner dude gray







evening walk

after office politics

lilac sent








through the open door . . .

her smile doesn’t forgive

all my sins



“coffee shop” & “through” – School’s Out (Press Here, 1999) 

“evening walk” – Modern Haiku (Autumn 2003)






  • by dagosan                                               

her marriage —

she says

it’s fine


 [Oct. 27, 2005]



                                                                                                                 happier days




slow news day (except for H.M. and the gloating)

Filed under: pre-06-2006 — David Giacalone @ 12:59 pm

Now that they’ve proven their tongues and elbows are as pointy

as their heads, America’s neo-con intelligentsia will surely be

offering a mixture of threats and advice to Pres. Bush regarding

his next Supreme Court nominee.


Since many of the neo-cons purport to be religious — and thus commandments

subject to the Most Supreme Court — I thought I would again

remind them that Pride, Anger and Envy are among the Seven


While I’m in preacher mode, here’s Mahatma Gandhi’s list of

the “traits most spiritually perilous to humanity,” which I just

discovered this morning:

  • Wealth without Work
  • Pleasure without Conscience
  • Science without Humanity
  • Knowledge without Character
  • Politics without Principle
  • Commerce without Morality
  • Worship without Sacrifice

“hangManG”  Back to gossip and speculation: Does anyone

think the White House accepted Harriet Mier’s withdrawal

today, expecting it would eclipse bad news later in the day

from Special Counsel Patrick Fitzgerald?  Does anyone think

Fitzgerald decided to make his annoucements tomorrow,

once he saw all the Miers’ coverage this morning?


tiny check Meanwhile, it’s a gray chilly day in Schenectady,

my last load of laundry is in the dryer, my car is in the

shop for new tires and more maintenance, and I’m

expecting a dose of agita over all the gloating that

will be floating in the blogisphere.  Sounds like an

Andrew Riutta kind of afternoon:



whatever it takes
to get us where we’re goin







my mistake
untangling the orchard
from your hair




Andrew Riutta  from Simply Haiku (Autumn 2005)




among our differences,
a thousand leaves sway
as one shadow



dead leaves—
children race one another
down an endless road





a woman
I pretend I don’t love
sets with the sun


Andrew Riutta  from World Haiku Review Peace




October 26, 2005

auto-judgment and self-esteem

Filed under: pre-06-2006 — David Giacalone @ 8:01 pm

carCoupeG Ann Althouse asks “Is she judging you by your car?” and a bus-full of folk left comments for her.

I’ve always:

(1) figured a woman who would be impressed by a flashy or expensive car is not my soulmate, and should preferably dump me early;

(2) felt sort of sorry for guys who need a blingy car to feel good about themselves.

(3) considered that the interior of a car can be a good clue to a couple’s clutter/litter compatibility potential.


Naturally, I’m waiting for autophile Steve Bainbridge to weigh in.

[Related NYT article, “SM w/SUV ISO SF w/Cnvtble for LTR, Poss

Grg Share,” by Matt Richtel, Oct. 26, 2005.]


luxury car–
a sparrow’s quiet


checking the driver
as I pass a car
just like mine

……………………. by John Stevenson from Some of the Silence

cycle tour —
wiping up with
yesterday’s map

Matt Morden, Morden Haiku (Oct. 22, 200

pickup g

traffic jam
a plastic dog
keeps on nodding

…………………………………………. Yu ChangUpstate Dim Sum ((2002/I)

mud-spattered pickup-
four dogs watch
the tavern door

………………………………. Billie WilsonThe Heron’s Nest (Feb. 2001)




an orange moth fills
the emptiness of Texas



ed markowskiMainichi News (Sept. 2005)



first date —
her eyes linger
on the rusted fender



…………….. by dagosan [Oct. 25, 2005]



more bad neology: “law porn”

Filed under: pre-06-2006 — David Giacalone @ 2:50 pm

Lawyers and law professors are purportedly “wordsmiths.”  Their
word-smithing skills are particularly important when they are playing
neologist — coining new words or nomenclature.  Therefore, Prof. Yabut
and the f/k/a gang are particularly annoyed to see the phrase “law porn
catching on in legal academia and the blawgisphere.
tiny check You see, the term refers to materials that are neither “law” nor “porn.”
Those who use the phrase “law porn” seem to attribute it to Stanford
Law Professor Pamela S. Karlan.   I don’t have Pam’s definition of the
phenomenon or concept, but Brian Leiter equates “law porn” with
“Sextonism” [named after former NYU Law School Dean John Sexton,
who is now President of NYU], which he describes as:
“a disease familiar to law faculty, in which a good school
suddenly lapses in to uncontrolled and utterly laughable
hyperbole in describing its faculty and accomplishments
to its professional peers. The NYU alumni magazine,
which was sent to all law faculty nationwide, was so plagued
by Sextonism that a Stanford professor memorably dubbed
it ‘law porn’.”
Dan Markel has described it further (PrawfsBlawg, Aug. 16, 2005), explaining:
“Judging by my mailbox at school, I guess it is now typical
in the law porn business for schools to distribute glossy
brochures to every law professor in the country that extol
the unparalleled virtues of the sender’s school and each
hiccup and burp it emits.”
We mere mortals outside the portals of legal academia can now
perhaps start to guess just what they are talking about: A practice
in which a law school bombards law faculty with materials (often very
glossy and expensively produced) touting its virtues in a manner that
may be somewhat exaggerated.  The practice has spread (perhaps
like a venereal disease) across the entire law school community.  [It’s
apparently done to help maintain or improve a school’s reputation, for
purposes such as the US News law school rankings.]
Full Professor
putting an extra syllable
between us
john stevenson, from Some of the Silence
As mentioned above, then, we’re not talking about law — unless one
is so parochial in perspective as to equate “law school” with “law.”
And, we’re not talking about “porn” or “pornography” — except, perhaps,
in its original meaning: describing or “writing about prostitutes.”
So, why are otherwise smart folk like Pam Karlan, Brian Leiter,  The
Conglomerate‘s Victor Fleischer, TaxProf‘s Paul Caron, and Dan Markel
at PrawfsBlawg, using such a nonsense term?  Do they really call every-
thing they don’t like (that’s slick or glossy?) “porn.”  (Surely, it doesn’t
become “porn” merely because there’s a lot of it in their mailboxes.  Or,
is that the connection?)   Are they so isolated that the little four-letter
word “porn” is titillating for them?  Especially catchy?  Do they really
think “law” and “law school” mean the same thing?
putting holes
in my argument
the woodpecker
george swede, from Almost Unseen
We’ve been preaching at this website rather consistently, that dictionaryN
neologisms should actually help explain the concept they’re naming — and,
at least, shouldn’t create more confusion than explanation.  It seems to us
that we have some pretty good terminology available already to describe large
amounts of unsolicited materials: “junk mail” and “spam.”   We also have
a pretty good term for highly exaggerated claims about a product or service:
Law schools are sending out massive quantities of magazines and other
forms of prospectus-like promotional materials, which are filled with puffery.
Can you dear reader come up with a better name than “law porn” for such
items?  If it needs to be cute and “neo”, maybe “law school puffspam” will
do.  Or, puffspectus.” Please offer your suggestions in a comment.
It’s not too late to improve on the term “law porn” and put it into the dustbin of internet history.
When you Google it today, there are only a few
results that relate to law school promotional materials, as opposed to porno-
graphy law and lawyers.   Let’s keep it that way — except for new links to
this post, of course.
We all have obligations toward our language legacy. When presented with
a neologism that simply fails to connote or denote the concept it has been
coined to represent, we should ask the coiners to come up with a better
choice — or create our own.   Otherwise, all we’re promoting is — um —
“word porn.”
update (Oct. 27, 2005): Paul Caron covers this topic today at TaxProf, including Pam Karlan’s defense of her term “law porn,” which she provided us last night in an email exchange.  Please go read the whole explanation, where Karlan focuses on the analogous term “food porn,” and reminds us that “At least within the community to which I was directing my remarks . . . the phrase communicates exactly what I intended: people instantly recognize the phenomenon and share my reaction to it.”

Meanwhile, one wag has emailed to ask whether this bookstore has a neology section.

update (Oct. 27, 2005): Here are substitutes for the term  erasingS
“law porn,” as suggested by our Commenters and emailers.
Thanks to each of them.  Please help us add to our list.
  • “perplexus”
  • “alumlies”
  • “publawcity”
  • “plawpaganda”
  • “plawbicity”
Heimliched out of me
pink candy heart
wordless now
randy brooks, from school’s out

October 25, 2005

ness-less too long

Filed under: pre-06-2006 — David Giacalone @ 8:07 pm



River currents

one by one the geese

bottom up







another spring
a tumble of stuffed bears
in the divorcee’s bed







leaves falling





from her bedroom

     the child banishes

         snakes and skeletons








the wings of pigeons fold

into the tree



“River currents” & “snowfall” – “A Flutter of Wings” (2003)

“from her bedroom” – driveway from childhood (1997)

“another spring” – Modern Haiku (Autumn 2003)




  • by dagosan                                               


out-patient exit —

taking home

a new sore throat



   [Oct. 25, 2005]




thank you, Rosa Parks

Filed under: pre-06-2006 — David Giacalone @ 7:41 pm

The media are filled with tributes to Rosa Parks, as we mourn

her death yesterday at the age of 92. (see NYT article).  Nearly

50 years ago — or, more to the point, only 50 years ago — she

was a catalyst for the civil rights movement and the fight for

true equality by Blacks in America.  Her courage came in the

simple refusal to give up her seat on a bus to a white man and

thus continue to accept second-class citizenship in Montgomery,



RParks  orig./Higgins/NYT


I was 5 years old when Mrs. Parks took her stand, and I can’t

remember the actual event.  However, its repercussions were

felt and seen in our news media — and on the new tv that came

into my childhood home — as I was growing up.  For those who

wonder why many Blacks still feel that they are considered to be

less than fully-equal by many of their fellow Americans, here is

an example of the treatment they received less than 50 years ago,

when they tried to use public transportation to get to and from

work or school (from today’s NYT): 

“On Montgomery buses, the first four rows were reserved

for whites. The rear was for blacks, who made up more

than 75 percent of the bus system’s riders. Blacks could

sit in the middle rows until those seats were needed by

whites. Then the blacks had to move to seats in the rear,

stand or, if there was no room, leave the bus. Even getting

on the bus presented hurdles: If whites were already sitting

in the front, blacks could board to pay the fare but then they

had to disembark and re-enter through the rear door.”

Mrs. Parks’ arrest led to a boycott of bus by the City’s black popu-  not equal black

lation.  As the New York Times explains:

“Finally, on Nov. 13, 1956, in Browder v. Gayle [352 US 903],

the Supreme Court outlawed segregation on buses. The court

order arrived in Montgomery on Dec. 20; the boycott ended the

next day. But the violence escalated: snipers fired into buses

as well as Dr. [Martin Luther] King’s home, and bombs were

tossed into churches and into the homes of ministers.”

At a time when so many Americans know so little of our history; when

we call people “heroes” for simply doing their jobs or for accepting respon-

sibilities that should be expected of every person in our society; and when

young Americans (including those with law degrees), choose their own

financial or social interests over taking the right or ethical course of action

(thanks to the example or indifference of their elders, I must note), I want

to thank Rosa Parks for her courage and dignity.




Moonlight spills through clouds…

a new tombstone

scattered with wilted flowers


window neg



Cold tea in cups—
sweaters draped over chairs
in the garden pagoda






Autumn evening–

yellow leaves cover

the plot reserved for me




“Moonlight spills” & “Autumn evening” – Shadwell Hills 

“cold tea” – Modern Haiku (Spring 2004)



a quick haiku break with john and yu (and Edith)

Filed under: pre-06-2006 — David Giacalone @ 3:53 pm

How do you wile away your time in medical waiting rooms?  This

morning, I was lucky enough to remember to bring the newest edition

of Upstate Dim Sum (2005/II), the journal of the Route 9 Haiku Group

here in Upstate New York.   While I work up a hospital-gown senryu

or two, here are a pair each from John Stevenson and Yu Chang for

all of you impatient for your f/k/a haiku fix:




of the old man’s






at bat neg 



eightieth birthday

still playing

the numbers









French Open

a couch potato

pumps his fist









a long walk

with an old friend








afterwords (5 PM):  I just discovered a small cache of tiny poems by

Edith Wharton, thanks to a post at George Wallace’s Fool in the Forest.

George reproduces a half dozen examples “of imagism or semi-haiku,”

that had been published in the January 1920 issue of the Yale

Review. They appear in a brand new American Poet’s Project 

volume of Wharton’s poetry.  Here are two of her short pieces:

    My little dog:
A heart-beat
At my feet.

 . . .

    III  Friendship
The silence of midnight,
A dying fire,
And the best unsaid. . . .


p.s. George, Now that you’ve met him, would you say

Martin Grace favors Mr. Spacely or Mr. Slater?




  • by dagosan                                               

first snow this year —

strangers in hospital gowns

talk weather




   [Oct. 25, 2005]

– speaking of old men, betting, psyched fans, etc.,  umpireG

our baseball haiku page is always in season, and

especially during the World Series.


October 24, 2005

Take Back Your Time Day — it’s for lawyers, too

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

Across the nation, today, people are “celebrating” Take Back Your Time Day.

“40 Is Enough” is this year’s theme, as the Nation commemorates the 65th

anniversary of the 40-hour work week statute.


According to the San Francisco Chronicle, “A survey by the Families and Work

Institute in New York found that 1 in 3 Americans feels chronically overworked,

and a study by the American Sleep Institute found that 50 percent of Americans

would be willing to work fewer hours for less pay.  SFGate.com, “Overworked No

More,” Oct. 22, 2005)


pocketwatchS Of course, lawyers love to see themselves as especially overworked, over-

stressed, and beset by life balance issues — and far too many are.  I just want to point

out that a very large percentage of adults (and children) in our nation feels the same

pressures.   Joining with them in the broader movement may be the best way to

change the policies and values that make us a nation that overworks, over-consumes,

and does a lot more talking about family values than living them. 

tiny check TBYT Day is is a project of the Center for Religion, Ethics and Social

Policy (CRESP).atCornell University and an initiative of The Simplicity Forum. 

The philosophy of the TBYT movement is a good one. As they say:


work is essential to happiness. But American life has gotten way out

of balance. Producing and consuming more have become the single-minded

obsession of the American economy, while other values — strong families

and communities, good health and a clean environment, active citizenship

and social justice, time for nature and the soul — are increasingly neglected.”

Their legislative agenda makes sense:  The campaign, dubbed “Time to Care,” calls

on political leaders for action in the following areas:

Guaranteeing paid childbirth leave for all parents. Today, only 40% of

Americans are able to take advantage of the 12 weeks of unpaid leave

provided by the Family and Medical Leave Act of 1993.


medbag Guaranteeing at least one week of paid sick leave for all workers.

Many  Americans work while sick, lowering productivity and endangering

other workers.


Guaranteeing at least three weeks of paid annual vacation leave for all 

workers. Studies show that 28% of all female employees and 37% of

women earning less than $40,000 a year receive no paid vacation at all.


Placing a limit on the amount of compulsory overtime work that an

employer can impose, with our goal being to give employees the right to

accept or refuse overtime work.


Making Election Day a holiday, with the understanding that Americans

need time for civic and political participation.


Making it easier for Americans to choose part-time work. Hourly wage

parity and protection of promotions and pro-rated benefits for part-time


They have a downloadable Endorsement Form/Petition on their Public Policy page.



Of course, “taking back” your time implies action and often courage in the workplace —

and, tellingly, a willingness to consume less.  (See, e.g., this article at the Greenwich

Time, “Families Struggle to balance downtime with high expectations,” Oct. 23, 2005).

As we said earlier this year: If young lawyers want to work saner schedules but don’t

want to sacrifice income or “prestige,” they need to stop whining and realize that they

are part of the problem   And, despite the prophets who curse the billable hours, I

continue to believe that:

“[F]rom the perspective of the overworked associate or partner, there is nothing

wrong with the billable hour fee system that is not very likely to be carried over

to any alternative billing arrangements, if the firm expects the shift to be made

without reducing its income or profits.”  [see chronomentrophobia ]

At the TBYT website, you can find almost 20 great posters to download, if you need

some graphic inspiration to join the cause (and start reassessing your life).  I like

“More Time. Less Stuff”; “Medieval Peasants Worked Less than You Do;” and both

of the posters that say “Home Alone Again” and picture sad doggies. 


tbyt  For more reading on the topic, you might want to check out the poll results

in this 2003 survey“Americans Eager to Take Back Their Time: Over Half Would

Trade a Day’s Pay for Less Work, Less Stress.”  Those willing to make a bigger

time commitment (that’s you, right?) should check out the book called the TBYT

Jon de Graaf, editor 2003). De Graaf is also a contirubtor and the editor of the book

tiny check For those who might need a vinous connection to get them

interested: Take Back Your Time joined in a partnership with Beringer

Founders’ Estate Wines to promote the “LIVING 5to9” campaign, en-

couraging better work-life balance in America.  You can go to the site

and make a pledge to take back a number of hours per day/year.  The

total pledge will be announced today (Oct. 24th).  As of 11 AM, EST,

over 2.6 million hours had been pledged. 


Do you think there would be more or less wine (and other spirits)  breadwine neg

consumed in America if people worked less, but were less stressed?

Younger lawyers and partners have to work together to create better lives

within the legal profession, by reducing the focus on profits and income (see

Adam Smith Esq post and ours).   We should also do our part in the broader

society — using our legislative and lobbying ability to help make the TBYT

agenda a reality.  Most important, we always have the obligation to ourselves

and our families to do more than talk about balancing life and work.  It comes

down to personal choice.  Mine is clearly to have less work and less stuff.  If

I were in San Francisco today, I’d also join the nap-in at 1 p.m. at Justin

Herman Plaza. 



hand to hand–

the unframed photos

of her life



the sound they make

the sound I make

autumn leaves







yesterday’s paper

in the next seat–

the train picks up speed







before the dew is off–

he pulls his son

in the new red wagon






up late–

the furnace come on

by it self






  • by dagosan                                               

rearview mirror–

the baby face

is gone



                          [Oct 24, 2005]




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