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

May 29, 2007

judges favor lawyers (and other unsurprising things)

Filed under: Haiku or Senryu,q.s. quickies — David Giacalone @ 8:49 am

 dandelion  Here are a few quickies on topics that deserve a much closer look than I can manage right now (are you surprised, after a lazy holiday weekend?). 

she tells me dandelion
is a weed
….. by Roberta Beary (Shiki Kukai, May 2007)

Judges Tilt Toward Lawyers: JudgeTilt

 “I believe that I have stumbled upon a heretofore undiscovered theory that explains and predicts decisions in any case that seriously affects the legal profession.

“Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)?  If so, the case will be decided in the way that offers the best result for the legal profession.”

Those words are from U. Tennessee law professor Benjamin Barton’s interesting and insightful paper “Do Judges Systematically Favor the Interests of the Legal Profession?” (May 2007, 44-pp pdf;via Empirical Legal Studies Blog).  Using theoretical support from the new institutionalism, cognitive psychology and economic theory, Prof. Barton looks at caselaw and legal doctrine “from areas as diverse as constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure.”  He answers the following questions:

“[W[hy are lawyers the only American profession to be truly and completely self-regulated?  Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege? Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising? Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent? Why is legal malpractice so much harder to prove than medical malpractice?” 

Barton’s discussion of each area deserves separate treatment, and I hope other legal webloggers will take a look at topics in their areas of expertise.  I will simply point here to his discussion of an issue frequently featured at this weblog (most recently, here) — indefensible limitations on the commercial free speech rights of invidual lawyers based on the legal profession’s desire to uphold its image and enforce its pathetic notion of dignity. After showing the broad free speech rights given other vendors and professionals, Prof. Barton focuses on the Supreme Court decision in Florida Bar v. Went For It, 515 U.S. 618 (1995), which he notes “includes no allegation that the advertising at issue is actually or even potentially false or misleading. Instead, the biggest problem seems to be the effect upon the public perception of lawyers.”  He concludes:

Moreover, the harm to reputation justification is in direct conflict with the Court’s resistance to the suppression of commercial speech on “paternalistic” grounds,145 and the Court’s earlier holding that lawyer advertising cannot be banned on “the mere possibility that some members of the population might find [the advertising] offensive” or that “some members of the bar might find [it] beneath their dignity.”

a flying crow
has something in its beak
the silence
……………….. by Devar Dahl (Shiki Kukai, May 2007) 


old dog
up the stairs
in my arms
….. by Roberta Beary – Shiki Kukai (free format-1st place, May 2007)

wolf’s howl
the heat of the campfire
on our faces

……………… by ed markowski (Shiki Kukai, May 2007)

bottlesNYT  Bottles Bottles Everywhere: I hope you won’t miss Sunday’s New York Times article “The Unintended Consequences of Hyperhydration, by Jon Mooallem” (May 27, 2007)?  Focusing on the enormous problems caused by our nation’s new attachment to little bottles of water, the piece looks at the history of Bottle Bill legislation and demonstrates just how dificult it can be to fashion laws that fairly treat a problem that has economic, environmental and social ramifications — especially in the face of massive opposition from well-financed lobbyists.   Here are some of the most telling points made:  

  1. “This year, Americans will drink more than 30 billion single-serving bottles of water.”
  2. “Bills to update existing laws [which do not cover non-carbonated beverages and are still set at a nickel a bottle] or pass one in a non-bottle-bill state typically flail around in committee until, clobbered by the powerful grocery and beverage industry lobbies or skipped over for sexier environmental issues, they disappear. This year, however, the Oregon campaign, along with similar ones in New York and Connecticut, have gained greater traction.”
  3. “Bottled-water companies claim that, because water is not distributed in strict territories like soda and beer, keeping track of their nickels will be even more difficult.”
  4. “Several industry people told me that water’s most exciting growth is now in sales of large multipacks or flats of single-serving bottles — stockpiles that we keep in our pantries or garages and grab a few bottles from on our way out the door. The obvious question then is, why not fill up a reusable bottle from the tap and take that with us. “ [we know the answer don’t we? Americans are “too busy” to be responsible]

The article looks at the complex systems that have been created to recycle returned bottles; the unexpected rise of municipal curbside recycling; the impact of various proposals on the homeless and working poor who collect bottles to make a living.  As an old curmudgeon who has often noted that in my day we only needed to carry our own water supply when going hiking or camping (and then we used reusuable canteens!), I got a kick out of this passage in the NYT article:

Michelle Barry of the market research firm the Hartman Group told me, “Water is not really critically considered” — not even the object itself, it seems. “We believe bottled water has become less about the physical act of hydration and more about being a companion to people,” she said. “They like to walk around with it and hold it.” Increasingly, the typical consumer sips out of a bottle of water “to mark time.” “It’s like their bangie,” Barry added, meaning a security blanket. Or rather, each bottle of water is one in a readily available cast of interchangeable security blankets that we can capriciously acquire and toss throughout the day.

either side
of the privacy fence

……………………………………… by tom painting

dandelionClock  Most Americans Favor the Immigration Compromise: Gosh. People who are not swayed by exaggerated fears, prejudices and economic interests (or those of their constituencies) find a lot to like in the compromise package on immigration reform recently put forth by a group of Senators and the White House. See Immigration Bill Provisions Gain Wide Support in Poll, New York Times, May 25, 2007, which starts: “As opponents from the right and left challenge an immigration bill before Congress, there is broad support among Americans — Democrats, Republicans and independents alike — for the major provisions in the legislation, according to the latest New York Times/CBS News poll.” The article continues:

Taking a pragmatic view on a divisive issue, a large majority of Americans want to change the immigration laws to allow illegal immigrants to gain legal status and to create a new guest worker program to meet future labor demands, the poll found.


ForestLawnMemDayS  Webloggers Take a Moment for Memorial Day: Even Baby Boomers who came of age fighting the war in Vietnam, and those who are fiercely against the war in Iraq have rightly been devoting pixels and bandwidth to remember and honor the million Americans who have died in our nation’s wars.  You can find an especially impressive posting at Biker Law Blog in Blawg Review #110, where lawyer-blogger-veteran Norman Gregory Fernandez has compiled much information (e.g., the history of Memorial Day, and of taps), some moving YouTube videos, and links to many web postings and articles of special interest relating to Memorial Day.  You can find quite a few Memorial Day haiku and senryu in our Memorial Day 2006 posting.   Here are a few, plus some new ones:


Memorial Day
he wears
his son’s dog tag

…….. by Hilary Tann – MagnaPoets; and Upstate Dim Sum (2005/II)


the parade ends
at the shopping mall —
memorial day

………. by dagosan – Magnapoets


the tulips
wide open 

………. by Carolyn Hall – The Heron’s Nest (Sept. 2005) 


LissaTulipTapsS  full-size haiga, MagnaPoets (May 28, 2007 )

taps’ last echo –
the vietnam protestor
wipes a tear

photo: Arthur Giacalone
poem: David Giacalone

the first notes 
squeezed from bagpipes
small town parade

………. by Peggy Lyles from To Hear the Rain


ForestLawnMemDaySN  full size haiga, MagnaPoets (May 25, 2007)

Memorial Day —
and fireflies

poem: David Giacalone
photo: Arthur Giacalone


Memorial Day-
overwintered in the sandbox
             toy soldiers

………………. by Tom Clausen

dandelion  Lies on Job Applications Are Increasing:  To the surprise of virtually no one around here (see, for example, this post on rampant cheating), an annual report by the research firm Kroll on background screening tells us:

“Discrepancies regarding what applicants reported to potential employers regarding their past employment increased from 36.5% in 2005 to 49.4% in 2006; and discrepancies in education verifications increased from 14.1% in 2005 to 21.5% in 2006.”  (via The Virtual Chase News Alert)


p.s. I am most pleased to announce that my self-help law weblog shlep will have its grand reopening today, Tuesday, May 29, 2007, under new management.  The new co-editors are an able duo of law librarians:

    Teresa L. Conaway, who is just leaving her position as Head of Reference & Instruction, Texas Tech University School of Law Library, to become the Head of Public Services at the University of La Verne (California).  Terry was a professor of paralegal studies for 12 years before becoming a law librarian. 

    Tammy Pettinato, who received a J.D. from Harvard Law School in 2005, and just finished her Masters in Information Science at the University of Michigan.  On May 16th, Tammy began working as a Reference Librarian at the UCLA Hugh & Hazel Darling Law Library

birthdayCake update (7 PM): Okay, This Might Be Surprising:  Against all odds, this weblog is celebrating its 4th Birthday this week.  I started posting at the then ethicalEsq in the last week of May 2003. Seems like I’m twice as cranky as I was when celebrating our Terrible Two’s two years ago (and doing half as much posting).  Nonetheless, I am most grateful for all the eyes that visit this weblog every day.


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