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

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]




October 23, 2005

pancakes and dim sum

Filed under: pre-06-2006 — David Giacalone @ 11:33 pm


What can I say about a Sunday that includes: hand-delivery, by

the venerable (and affable) Yu Chang himself, of the newest edition

of Upstate Dim Sum (2005/II); a pancake brunch with ample

portions of good coffee, good conversation and traditional diner-

style people-watching; a nice early autumn nap; and the early 

arrival of the jointly produced Carnival of the Capitalists #107 

and Blawg Review #29, hosted by Blawg Review’s own, omni-

present Ed-nonymous Editor?  I can say: darn good Sunday —

except, it’s 10 PM and I haven’t done any posting yet today.


With no additional ado, here’s a good helping of haiku by

Ithacan, and Route 9 Haikuist Tom Clausen, from the newest

Upstate Dim Sum:



my mistakes —

no matter how many

coats of paint



paint can neg flip




in the car singing

until I’m passed

and seen …







last sandwich

from the loaf

the two ends





when did that happen?

the river appears

through leafless branches



[Oct. 23, 2005]




tiny check   How does Steve Bainbridge find time for Mass, and still   paint can

get in all those antiHarriet posts over a weekend– despite taking the time

to hunt up all his good press and engage in some self-congratulation? 

Were I a Bible-quotin’ kinda guy, I’d be wondering how the Sermon on the

Mount fits in with all this Harriet-bashing (before the hearings, even), and

I might even do a chart featuring the Seven Deadly Sins v. the Neo-Cons.

Find inter-faith information on pride, envy, wrath, gluttony etc., here.

“witchbrewS” update (Oct. 24, 2005):  Prof. B. wrote in to remind me

that he also

“took time out to mix up a mean batch of Kansas City Steak Soup 
this weekend.” 

I’d hate to think what he was mumbling while stirring that boiling

stew — and just what got chopped and diced in the process. 






October 22, 2005

hall of mirrors

Filed under: pre-06-2006 — David Giacalone @ 5:34 pm

On an overcast Saturday, would you rather read more

negative stuff about Harriet Miers, see “snarky” remarks

about Cultural Protection at Mirror of Justice, or enjoy

some great senryu and haiku from Ed Markowski? I’m

with you:




house of mirrors

a different woman enters

every reflection










house of mirrors

i promise my wife

i’ll change






bells in the fog

i clearly recall

the toll of bourbon








“absolut control”

as if i could ever

stop at one










above the Atlantic

this desire to pee

on the side of the road










the clatter of a roller coaster

climbing up the track


“moonrise” – Mainichi Daily News (Nov. 2005)



  • by dagosan                                               

late for dinner


way past al dente



[Oct. 22, 2005]







October 21, 2005

pumping old brakes

Filed under: pre-06-2006 — David Giacalone @ 5:51 pm

. . . and, posting old Brooks (and loving it):


first kiss

deep in the woods . .

sunbeams filter down



load of seedwheat–

pumping old brakes

all the way down the hill






day of atonement . . .
the weight of crabapples
bent to the ground







autumn rain . . .
the last of the dust
brought to earth


autumn rain . . .” – Tasting Vintage Haiku (World Haiku Review)  

day of atonement” – Modern Haiku (Spring 2004)

“load of seedwheat” & “first kiss” – from School’s Out (1999) 


  • by dagosan                                               


first cold morning —

river mist mixes

with car exhaust




first cold day

torn index finger

on last year’s glove


[Oct. 21, 2005]



“HurricaneG”   breathless punditry

tiny check Hurricane Wilma, go away.


tiny check  It’s 4:55 PM on a Friday — who cares what’s happening

in the Miers confirmation?  Right now, not I.  Have a

great weekend.  That means you, too, Prof. B.


tiny check  Out of breath.  Naptime.



realtors and legislators are selling you out

Filed under: pre-06-2006 — David Giacalone @ 2:45 pm

Realtors like receiving that large, uniform commission — usually 6
or 7 percent of the purchase price — every time they sell a home.
Therefore, they dislike discount brokers, and particularly those who
unbundle services and let home sellers pay a flat fee for each
service or option package. Of course, if the realtors conspired together
to exclude, punish or otherwise disadvantage cut-rate or fee-for-service
brokers, they would violate the antitrust laws.
house for sale neg However, realtor associations have found a sword against discount brokers and a shield against the antitrust laws:  They’ve been successfully lobbying state legislators, who have dutifully enacted so-called “minimum service laws” (in the name of consumer protection, of course), which require brokers to provide a broad set of services, regardless of whether the consumer wants or needs them.  Because trade associations can lobby without violating the antitrust laws (under the Noerr-Pennington doctrine), and they receive “Parker or State Action immunity from the antitrust laws for conduct that is required under a state law, consumers in many states have no antitrust protection against minimum-service laws, and now face fewer choices and higher fees when they sell or buy a home.

Oklahoma passed a minimum-services law in June, and its realtors seem to be maneuvering for regulations that are even more restrictive than the statute (“Antitrust officials watching minmum service real estate laws,

Inman News, Oct. 19, 2005). Texas Gov. Rick Perry signed such a law in June,

effective Sept. 1, 2005, causing alternative brokers having to increase their prices and remove some options (“Flat-fee brokers adapt to new real estate law,” Inman News, Oct., 12, 2005). Alabama joined the consumer sell-out in August — with realtor clout demonstrated by a 35 – 0 vote in the Senate and 95 -1 vote in the House.  (States snub Justice Department’s antitrust complaints (Inman News, Aug. 10, 2005).    Ohio and Wisconsin are currently considering similar laws.

Although consumer advocacy efforts by the Federal Trade Commission

and Department of Justice, in each of the above states, have proven fruitless
(e.g., their Letter re Texas legislation earlier this year), the agencies submitted
a Letter this week (Press Release, Oct. 20,2005) to the state Senate in the
newest battle ground – Michigan.

The FTC/DOJ Letter to Michigan legislators gives this background (at 4):

“It is becoming increasingly common for home sellers and home buyers to want some, but not all, of the traditional brokerage services.  For example, some sellers might want help advertising their homes, but want to negotiate the sale price themselves.  Such consumers might prefer to pay a real estate professional only for the service of listing their homes in the local MLS [multi-

ple listing service] and placing advertisements in local media.  Other consumers might find a buyer without assistance, but would like to hire a real estate professional to assist them with the negotiation of the sales price or with the paperwork required to close the transaction.  The marketplace is evolving in response to these consumers.  Real estate professionals who are willing to provide a customized subset or menu of a la carte services have emerged in Michigan and throughout the country.  These “fee-for-service” or “menu-driven” business models are currently legal under Michigan law and typically enable consumers to save thousands of dollars because the consumers pay only for those services they want.”
MichiganN The legislation proposed in Michigan (HB 4849) would require brokers acting
“pursuant to a service provision agreement creating an exclusive agency relationship” to,
at a minimum,provide (a) marketing services for the seller in the manner agreed upon in the
agreement; (b) the acceptance of delivery and presentation of offers and counteroffers; (c)
assistance in developing, communicating, negotiating, and presenting offers, counteroffers
and related documents, until agreement is reached and all contingencies satisfied; (d) assis-
tance necessary to complete the transaction under the terms specified in the purchase
agreement; and (e) furnishing and completing the legally-required closing statement.
FTC Chairman Deborah Platt Majoras noted:

“Consumers should have a choice in the level of real estate
services that best meets their needs. . . The bill likely would
take away lower-price choices and also likely increase the
prices of full-service real estate services.”

Thomas O. Barnett, Acting Assistant Attorney General in charge of the DOJ’s
Antitrust Division, added: “Consumers deserve to receive the full benefits of
competition – greater choices and better services – in order to meet their real
estate needs.”  In their joint submittal, the agencies point out that there is no
evidence that options available in the current broker marketplace has caused
consumer injury.
The f/k/a gang wants to add that consumers always face some  “emptypocketsS”
level of potential risk, when they purchase lower-priced products
or services, but they should be allowed those choices, subject to
a strong showing that the risk is unacceptable.  That is especially
true in situations, like here, where consumers have such varied needs
and capacities (for example, many Americans are capable of drafting
their own fact sheets, and printing them at-home, and of talking price
with potential buyers).  Furthermore, there is a very real risk that any
mandated package includes unneeded services sold at an articifially
high price.
MichiganG As Mark Ijlal mentioned at his weblawg last week, many parts of
Michigan can expect to face housing market slumps in the near future, due to
the troubles of companies like Delphi and Ford, which will bring countless layoffs
and immeasurable uncertainties.  If Michigan’s Realtors have their way, those
forced to sell their homes at the bottom of the market will have fewer ways to
save money on brokerage services.  But, they can feel so good about all that
extra paternalistic protection, courtesy of their smiling Realtors.
moving day
the other men
in her life
Ken Wallis, chief legal adviser to Alabama’s governor, explained, it “was just a
no-brainer” to approve their state’s new real estate law, because “The average
seller has to have additional assistance in a transaction.” Wallis added:
“There are 100 things that the average seller does not know, and
somebody’s got to help them with it. It’s no different than paying a
doctor’s fee or a dentist’s fee. You’ve got to have those services and
the public benefits from having a good agent or broker to handle their
transaction for them. The governor’s interest in this matter was deciding
if the law was in the best interests of the public.”
On the behalf of the helplessly grateful residents of Alabama, we thank you, Gov.
Bob Riley.
house for sale I know the realtor trade groups have lawyers working to get these laws
passed. And legislative and executive branch counsel are kowtowing to the Realtors.
Are any lawyers doing anything to protect the rights of home buyers and sellers?  Or,
is the Bar so paralyzed by its own dependence on anticompetitive guild tactics (such
as barring non-lawyers from performing real estate closings), and so blinded by its
own addiction to standard contingency fees, that it is embarrassed to come to the
assistance of consumers who have no lobbying clout and no political action committees?
(Nov. 8, 2006)Ssee our brokers, commissions, renovations. written
after attending the above-referenced AAI Symposium.
(Jan. 15, 2006): Lobbying to Sell Your House, NYT, by Glen Justice,
Jan. 12, 2006  [via Matt Homann
one last look
through the old apartment
a dry sponge
since you moved
just a road
I don’t go down
her eyes narrow,
seeing for the first time
my little home
Quiet Enough (Red Moon Press, 2004)

house neg

October 20, 2005

no rubble, please

Filed under: pre-06-2006 — David Giacalone @ 1:01 pm

Even more than usual, my attention seems to be blown from

place to place lately by the slightest changes in atmospheric

pressure.  It’s no surprise, then, that the august RiskProf’s

allusion yesterday to Wilma Flintstone sent me way off course

this morning.


As you know, Martin Grace’s expertise is insurance risk, so he’s  Prof Grace

supposed to be worrying about Hurricane Wilma.  Our expertise

is a bit less focused around here.  Please don’t think, though, that

my clicking through to A Flintstones World was a complete waste

of time. Besides re-acquainting myself with some of my favorite

cartoon characters, I was inspired to learn more about hurricane

names at National Hurricane Center‘s website (plus a FEMA page

for kids).


Here are some of my discoveries [you can find the original Flintstones’

images, and many more, here]:

tiny check The cumbersome latitude-longitude identification

method for Atlantic tropical storms was changed in 1953

to a system using names.  Originally organized by the U.S. 

National Hurricane Center, the lists are now maintained 

and updated — in a nice example of bureaucracy-creep

and/or global political correctness — by an international


WilmaF  There are six rotating lists of names, with 21 names

each. Wilma is the 21st storm of the year, so any additional

tropical storms this season will “take names from the Greek

alphabet: Alpha, Beta, Gamma, Delta, and so on.”


tiny check In 1979, there was one gigantic step for gender equality

(I remember it well), when male names were added to lists

that had previously been solely female names.


tiny check The 6th named Atlantic storm in 2009 will be Fred.  FredF

The list used in 2004 will start the next cycle in 2010.


tiny check The names of hurricanes can be English, Spanish or French,

the major languages in the regions where the storms occur.

“The only time that there is a change in the list is if a storm is

so deadly or costly that the future use of its name on a different

storm would be inappropriate for reasons of sensitivity.”


BettyR BarneyR  I am very happy to say that neither Betty

nor Barney are on the six lists of assigned names — eliminating

Rubble jokes.  Rubble isn’t very funny this year.


Warning: Silliness and Bad Pun Alert.  The following

may not be suitable for those prone to queasiness or



While checking out the Flintstones World site, I freshed my recollection

of some of their guest characters and inventions, and cool cars.  It got me

thinking: Although the term Bouldersphere hadn’t been coined in the Flintstones’

era, it seems to be populated by people who remind me quite a bit of some

prominent members of the Blawgisphere.  For example:


It was RiskProf Martin F. Grace (photo above), who started us on  FlintsonesSlate

this tangent to Bedrock.   Don’t you think he favors the lovable Mr. Slate?  (What

does that “F” stand for?) update: Martin informs me the “F” stands for neither Fred

nor Flintstone, but Francis.


“spacelyG” orig.


update update (Oct. 21, 2005): Prof. Grace(ly) confesses

over at RiskProf that he’s really a Spacely Jetsonian — I don’t

know whether or not that makes him Supreme Court material,

but Prof. Barneybridge probably has an opinion on that subject. 

(Of course, a goatee did not help Juge Bork any.)  Did Slate and

Spacely meet in the 1987 movie The Jetsons Meet the Flinstones?

To be honest, Your Editor can’t quite image the fun-loving RisqueProf

being as irritable and Scrooge-like as Mr. Spacely — or Mr. Slate. 


FlintstonesCar  Have you noticed how much Prof. Barneybridge loves his cars,

and his pets?


What about that very artsy weblogging lawyer in Pasadino, CA.?  FlintsonesHoagy


FlintstonesAnn  And, who is the Ann, who so bewitched Fred and Barney? Could

she be that siren from Bed & Bedrock who can also be found Between Layers?


Don’t forget the many gadgets so beloved by the Hanna-Blawgbera Gang.  FlintstonesPhono

Could the arm in that picture belong to Iron Svenstone?  Evan Stoner?


Finally, maybe we should all be a bit suspicious of the crusty haijin blawgger,

who so loves fireflies — and hangs out with Prof. Yabba-dag-adieu.   As Arsenio

Hallstone, Wilma’s favorite nighttime host, likes to say, It makes you go, hmmmm.



too cold for fireflies — 

campfire sparks

float over the rocks




the old days . . .
autumn colors
black and white










his headstone
rises with the moon

above the silence





hard to tell if they are
laughing or not








oh joy!
kidney stones
skipping across the water



“crows–” and “oh joy!” from Simply Haiku (Autumn 2005)

“the old days” – for Linda Chambers

“his headstone” – Full Moon Magazine (2005)


Kashmir’s children

atop the rubble

under the rubble

[Oct. 20, 2005]  





raindropS  from Morden Haiku (Oct. 18, 2005):

strategy planning
crows disappear
into the slates


         Matt Morden


raindropSF  Don’t forget to get your free download

of David G. Lanoue’s new haiku novel Dewdrop World.                    


                                                                                                                  FredLightN  orig.


October 19, 2005

NJ discipline gag rule held unconstitutional

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

Earlier today, the Supreme Court of New Jersey reversed the “gag” rule

imposed on those who file ethics complaints against lawyers, declaring it

unconstitutional.  The rule had threatened individuals with criminal contempt,

for disclosing that they had filed a grievance against a lawyer unless and until

a formal complaint is filed by bar counsel.  R.M. vs. the Supreme Court of New

Jersey (A-89-04) (see HALT Newsletter, Oct. 19, 2005; our prior post, “Omerta

in New Jersey”)


newspaperS  In its opinion (per Justice Zazzali), the Court stated:

“[T]he public is entitled to this information, entitled to know of charges
against attorneys, entitled to know who is the subject of those charges,
and, most of all, entitled to know how the system is working. It is their
system, not ours, not the attorneys’; it is their system just as is the
rest of the justice system.’”

As HALT reported, “Opponents of victims’ right to free speech argued that New 
Jersey’s “gag” rule was necessary to maintain the reputation of individual lawyers
and the legal profession. The court responded:

“Shielding dismissed grievances behind a permanent wall of silence does
less to ‘enhance respect’ for the legal profession and the ethics process
than it does to ‘engender resentment, suspicion, and contempt.’”

This echoes what f/k/a stated back in May:

To the N.J. Court and Bar: “Please give up the decoder and pinky

rings.  Secrecy breeds contempt, not respect.  No More Omerta.”


p.s. The same goes for Alaska, Arkansas, Georgia, Montana,

Nebraska, Nevada, South Dakota and Washington, which have 

similar gag rules — and the 27 state grievance committees that

strongly advise or request consumers to keep their grievances



The Court says the new rule will apply to all pending grievances, but not to completed

matters.  Over objections by three of the seven justices, the majority chose not to

remand the case to the Professional Responsibility Rules Committee to review whether

the removal of confidentiality should be accompanied by a lifting of the current absolute

immunity for grievants.




                                                                                                        need a gag muzzle?




what’s the rush?

Filed under: pre-06-2006 — David Giacalone @ 6:23 pm

While I’ve been goofing off today, Yu Chang

has been down the road at Union College

doing his professor (electrical engineering)

shtick.  It’s a good thing he left a bagful of

haiku for this aging slacker to share with you:



vivid dreams

the din of a garbage truck

drives you away





turning over

a dead leaf

an earthworm twitches




trashman small




Flamenco dancer

the old planks








giving color

to a dry reed





Yu Chang 



  • by dagosan:                                               

my “funeral suit”

too snug —

someday, it’ll be baggy

                           [Oct. 19, 2005]

bully2 potluck

tiny check  As Prof. B notes today, now it’s Bork doing the Borking

skewering Harriet Miers.   Meanwhile, Prof. Ann Althouse takes

the Democrats to task for going soft on Miers, saying they are

showing their disrespect for the judiciary — as Pres. Bush. has

done — by giving Miers a pass.  I still don’t understand the push

for a rush to judgment.  


tiny check  Is Evan being too sensitive?  Ted too judgmental?  Evan

Schaeffer wrote this morning at Legal Underground about Ted

Frank’s Point of Law piece on Vioxx forum shopping in Illinois.

Evan is not happy about the “subtle tone of moral condemnation.”

I invite our readers to check out both pieces and let us all know

whether you think Evan is being too sensitive.  Here’s the Comment

that I left at Evan’s weblog:

Evan, When I originally read Ted’s post, I thought he was

complaining about the way the system works (what it

allows) much more than about the lawyers. After reading

your post and then re-reading Ted’s I still feel that way.


. . There really is a fine line to walk, and you’re right that

it is particularly hard to do so in the context of a weblog,

where staying short and punchy and opinionated is

considered a virtue. In the context of an adversarial legal

system, I think a thick skin is important — especially when

having a thin skin makes it look like you might be trying to

win points by attacking the other person rather than addressing

the policy issues. 


It’s a tightrope shaped like a vicious circle.  (update: here is

Ted’s admittedly “wordy” response to Evan.)


                                                                                                      tightrope flip



October 18, 2005

pols & judges: the roles are different, Lisa

Filed under: pre-06-2006 — David Giacalone @ 6:56 pm

Lisa Stone recently reminded us that she’s “no attorney.”  But,

she certainly does cyber-hang with a lot of them at the Law.com

Weblog Network.  Would one of them please explain to her why

fjudgeS a judge


just might — appropriately — have a different opinion

on an issue [or the outcome of the judicial or legislative

process relating to that issue] than he or she has as a

private citizen or as


                                                                   a politician “Vote neg” .


Therefore, despite Lisa’s post today, we cannot and should

not know how Harriet Miers would vote when presented with

abortion-related issues, simply by knowing her stance as a

politician in 1989. (See, e.g., A Matter of Interpretation, by

Antonin Scalia, 1987; cf., The Federalist Papers.)


update (9:30 PM):  Lisa has added this to her post, in response

to my above complaint:

“Updated graph: Sorry, but I think the selling of this

particular candidate in the past week–both over and

under-the-counter–makes this appropriate distinction

of roles (so appropriate-sounding with the nomination

of Roberts, who worked for Reagan and then served

as a judge) sound disingenuous where Miers is concerned. “

I just emailed Lisa, saying that making the distinction is the only

appropriate reply that the White House or any other interested

parties should be making, and adding: “We shouldn’t expect a direct

answer to the abortion question, even at the nomination hearings.  

Your take on this in today’s post sounds more like a journalist trying

to create a controversy than one trying to help explain an important

public issue.” 


update (Oct. 19, 2005): Steve Bainbridge made my point nicely

today, in a post titled “Will She or Won’t She?“:

“I start with the hope that Miers’ 1989 statement does not

tell us how she will rule. In my book (or, more precisely,

my article), judges are not supposed to decide cases

based on personal political policy preferences. They are

supposed to try to figure out what the law is, which in the

case of Roe means looking at the text of the Constitution,

the intent of the framers, and the traditions of our country

(i.e., originalism, textualism, and traditionalism). One thus

can readily imagine a judge who would vote to support a

state ban on abortions and then turn around and, in his

capacity as a judge, strike that very same law down because

the judge believes stare decisis requires him or her to adhere

to Roe.”


  • by dagosan:                                               

running for judge —

she practices

her braille


                           [Oct. 18, 2005]



scales rich poor neg




no quotas aloud

Filed under: pre-06-2006 — David Giacalone @ 4:37 pm

It’s been difficult finding a topic for punditry today.  I was impressed 

yesterday by the RiskProf’s suggestion that the next Fed Chairman

might come from the Texas Cosmetology Advisory Board.  So, I

surfed over there this morning.  The Board’s Presiding Officer is

Clive Lamb.  “Chairman Lamb” should have a nice docile ring to it

for the President.  [Prof. B. also thinks GW Bush might pick a


umbrella vert  I just saw the tagline on the masthead of the

Texas Department of Licensing and Regulation – it says “the

 umbrella licensing agency of the State of Texas.”  Do you

mean to say that umbrellas are more regulated than handguns

or shotguns in Texas?  They really do need Kinky Friedman

for Governmor.  

I’m still waiting for someone to explain why the constant demand

for their own seat on the Supreme Court by all the cranial-conservo-

crybabies isn’t asking for a quota, or at least affirmative action.  How-

ever, I’m not going to waste more pixel-space on the topic until some-

thing important takes place in the Miers’ confirmation process.


tiny check Therefore, instead of worrying about cronies and quotas,

I’m going to help address a recent deficit at this website:

not enough haiku from DeVar Dahl.   We have no quota

for Canadian artistry — just for quality one-breath poems:





the crisp wings

of an old dragonfly

autumn sunset





dull pencil

    the staff meeting

    goes on and on










autumn winds
pine cones roll
under the fence








heat wave–
the cow’s udder
hangs in the pond





“the crisp wings” – Snapshots Magazine #10 (2004)

“autumn winds” – hon men., WHC Shiki Haiku Poems Contest

“dull pencil” – Haiku Canada Newsletter 16:1

“heat wave” – from Basho Mem. Museum (English selections, 2005)





autumn cycle

one red and one brown

sock in the tub




two rainbows

in one day —

no one to tell


[Oct. 18, 2005]  


tiny check  If you haven’t been over to haikupoet.com lately,

click on through, to see the latest bunch of October haiku by

paul david mena, with photos by mary melodee mena.  Being

partial to Einstein’s quote about plaid pants, I must dissent,

however, to the notion expressed in this haiku.




a great free novel: “Dewdrop World” by David G. Lanoue

Filed under: pre-06-2006 — David Giacalone @ 1:50 am

Xavier University Professor David G. Lanoe was one of the many thousands
displaced from New Orleans by Hurricane Katrina.   A month ago, we were
happy to report that David, one of our first Honored Guest poets, and our much-
Issa Translator, was safe in his hometown of Omaha, and using the forced
sabbatical productively — working on his latest novel,
Haiku Wars, and translating

many more Issa poems. 

this world
is a dewdrop world
yes… but…

        —Issa (“Cup-of-Tea”)

Over the weekend, we received more great news: David — author of two highly-  “Haiku Guy neg”
acclaimed haiku novels, Haiku Guy  (2000) and Laughing Buddha (2004) — has
finished and published (on October 17th) another long-contemplated novel, called
Dewdrop World.  Even better, although he plans to publish Dewdrop World in printed
form, David is making the novel available for dowloading free in pdf format (362 KB). 

Here’s how David explains his decision:

floodCityN  “Throughout my hurricane exile, the kind support from friends,
family and  strangers has been truly amazing. This sneak preview is my
small way of saying thanks to all who have helped the citizens of New
Orleans in our time of need. arigatou gozaimashita!”

the city Care forgot
is drowning, Care

      david g. lanoue

“lanoueSelf”  In June 2004, I shared my delight after reading Haiku Guy, saying: “This
slim volume entertains and captivates, while wistfully teaching ‘about love,
poetry and just what it all might mean.’  Along the way, it weaves in dozens
of one-breath poems that will make haiku afficionados smile, and turn the
haiku-illiterate into haiku addicts.” It has adventure, romance, time travel,
and more.  (You can read the first two chapters here.)   I have often given
both Haiku Guy and Laughing Buddha as gifts, making quite a few new Lanoue

Because I wanted to write this post right away, I haven’t finished Dewdrop World.  But, it
seems clear that David has “done it again.”   If you haven’t read his prior books, please
do yourself a big favor and check out Dewdrop World.   You’ll soon be a fan, too.

[see the update below for a brief description of the haiku novel Dewdrop World.]

raindropF  Here are a few of the fine haiku and senryu that you will find in
Dewdrop World:


it’s good
to be a horse
the sweet meadow 




balcony view
the blonde’s
black roots 


playing their parts 
on the paper screen
spider, fly



one last teatime
for the autumn


after meeting the turtle
every rock
a suspect

LanoueChiara  lanoue/chiara

cleansing my ears
for music
quiet mountain


David G. Lanoue from Dewdrop World (2005)


update (Oct. 18, 3 PM):  David Lanoue just sent me this

brief description of Dewdrop World:


In Dewdrop World we follow the drunken Poet in Green, Mido,

on an adventure in Old Japan in which he finds himself to be

the unlikely protector of a runaway geisha. Meanwhile, in modern

New Orleans, the narrator has his own share of problems, as he

has fallen in love (lust?) with the mysterious, maybe crazy,

girlfriend of a local drug lord.


Dewdrop World asks the same question that Buck-Teeth’s haiku

master Cup-of-Tea asked when his children died, one by one:

How can we keep on living (and smiling) in this “dewdrop world”

where everything and everyone, including all whom we love, must

fade away?


October 17, 2005

brains-free — a beer-ennial problem

Filed under: pre-06-2006 — David Giacalone @ 8:12 pm

What’s worse than thinking about hordes of college students engaging

in drinking contests like Beer Pong and Bud Pong? (See NYT, “As

Young Adults Drink to Win, Marketers Join In,” Oct. 16, 2005)  For me,

it’s the thought of law students continuing to engage in this asinine

activity — leading, of course, to young associates doing it, too. 

tiny check And, what’s even more painful than criminal defense

lawyers making lame public statements about their

angelic clients?  It’s beer company spokespersons,

like Anheuser-Busch’s Francine Katz (properly berated 

by webloggers here and here), who wants us to believe

that Bud Pong contests at bars like Esso Club in Clemson,

SC, are merely meant as “icebreakers” to meet people,

while losing contestants chug water, not beer.



Our post back in June 2003, Law School Substance Abuse Still High,

doesn’t give me much hope that law students leave this foolishness

behind.  Nor does this Editorial from the student newspaper at the

Univerty of Toronto’s Law School (Ultra Vires, “Law Games victory

comes at greater cost?, Jan. 2004), which boasts of activities at

a Law Games gettogether in Halifax, Canada:

“In terms of drinking, most of us managed to get absolutely

wasted on most nights; one delegate even lost half a tooth

and another had to attend the hospital after valiantly subjecting

himself to alcohol poisoning. We also performed admirably

in the drinking games—a refreshing return to a mode of

competition many among us had not witnessed since

undergrad—taking down the most alcohol the fastest.

There was even some talk of strategically inducing vomiting

among our team members so that they could compete more

effectively in subsequent rounds.”



under the cherry blossoms

just a dab

of vomit 





this body of mine

part temple

part tavern


   from Dewdrop World (2005)


I’d love to hear from current or recent law students, especially to be

reassured that maturity and responsibility are the normal approach

to alcohol consumption by law students on their campuses.  For

now, I think I’ll add Drinking Competition activities to the list of personal

characteristics I would like to know about when my legal needs are

being provided by young associates. (see Law.com‘s “Law Firms Agree

to Give Clients Diversity Data on Legal Teams,” May 13, 2005, and 

The Lawyer/UK article), plus our reaction: no yoda quota?)  



kissing moon

a gentle drunk


getting drunk
on my arm
the tavern mosquitos

David G. Lanoue from Haiku Guy: a novel  


p.s. Having a substance abuse problem is no joke.

If you do have one, you can find some resources

with links at our prior post.                                                                                                          



6 innings

8 beers

  o  b  e  e  d

b   b  l  h  a



from games (pawEprint 78, Nov. 2004) 


  • by dagosan                                               

her beer breath —


we both have headaches 



 [Oct. 17, 2005]




October 16, 2005

introducing andrew riutta

Filed under: pre-06-2006 — David Giacalone @ 6:22 pm

Earlier this week, f/k/a presented two sneak previews of the haiku

of Andrew Riutta.  One reason should be obvious, once you read his 

poetry: haikuEsq was too excited about having Andrew’s work on

this humble website to wait for a formal introductory post.  The other

reason for putting off an introduction is perhaps a little less obvious:

haikuEsq is trained as a lawyer, not a literary critic, and he’s been

having a hard time finding the right words to explain what makes

Andrew’s haiku stand out — for both their excellence and their unique


tiny check Our other alter ego dagosan put it like this:  When I

see most high-quality haiku, I allow myself the conceit of

thinking “I could have written that (at least with a lot more

practice).”  With Riutta’s haiku, I often sigh, “I never

would have seen that connection, or said so much

with so few words.”

“RiuttaA”  In an interview with the poet-editor Robert Wilson, in the

Summer 2005 edition of Wilson’s Simply Haiku Magazine, we get

a glimpse of Andrew that helps explain his art and craft — and allows

him to provide the words haikuEsq hasn’t yet found.  Asked which poets

have influenced him, Andrew includes Ralph Waldo Emerson, saying: 

One of the quotes that has become one of my templates is by Emerson:

‘Step out of the house to see the moon and it is mere tinsel; it will not

please as when its light shines upon your necessary journey’.”


When asked his goals, he explains:

Since I am rather new to all of this, my goals still consist

of attempting to give that which seems to have very little

voice in our world, a voice: the bond and the distance between

humanity and the world in which it lives. Ultimately we are all

moving in the same direction, and yet so very few people you

meet are willing to acknowledge this fact.  I want to continue to

notice and write about the little moments that depict this scenario.

Then, after saying that he would like to help people develop their own voices,

Andrew reveals a longterm goal (that resonates with this weblog’s Editor):

There’s also a part of me that would love to help haiku appeal

to those who may not be interested in it because they believe

that it conveys that which is already obvious. I would like to

help people recognize that each of us is participating in all

these moments, and therefore, each of us has the depth to

be able to perceive them in a manner that no one else can.


                                                                                  leaves flying

Juxtaposing emotion (often conflict) with the natural world around us,

Andrew writes haiku that create a mood with a simple image and a

human connection.   He tells us he will “always be a newcomer” to

haiku, because “Every day is a new day.”  That’s not a cliche for

Andrew; it’s the attitude that makes his poetry alive, with real moments

and mood, not contrived ones.


Enough introduction.  Here’s another course in the ongoing feast that

Andrew Riutta has generously allowed f/k/a to share with you.  You can

find links to posts that feature his work on his archive page.





quiet lake—
all these years
he has held his breath





I leave it to die
in the pasture







the silver leaves
that were once my life—
autumn wind




every time
a child blinks…
another dandelion





such a long way
to stillness





leafless trees—
an old man stares at himself
in the river


MichiganG  Andrew Riutta from Simply Haiku (Autumn 2005)



p.s.   Those who like biographical information, should know that Andrew 

Riutta lives in northern Michigan, along with his wife, Lori, and their four-year

old daughter, Issabella (gotta love that name!).  [Her first published haiku

appeared in the Spring 2005 edition of Canadian Zen Haiku.]


Andrew grew up on the shores of Lake Superior, surrounded by freighters

and agates; orchards and farms. When not writing or reading poetry, Andrew

loves to sew hand-stitched bags out of canvas and leather. He also loves

listening to wide band and shortwave radio. Mostly, he loves “learning from

his daughter about the world.”






Publius seems dubious

Filed under: pre-06-2006 — David Giacalone @ 1:13 am

For years, I’ve wanted to re-acquaint myself with The Federalist Papers.

They are, of course, practically Holy Writ for many of my blawgisphere

colleagues, who quote them often.   Refreshing my recollection seems like

a very good idea, therefore — if only to make sure the Devil isn’t doing the



 MiersBush  Since the nomination of Harriet Miers for a seat on the

Supreme Court, I’ve been especially eager to sit down with my recently-

purchased copy of TFP.   I’ve been wanting to see whether — beyond the

cronyism discussion in The Federalist No. 76 (prior post) — it might help

me better understand:

(1) the runaway rush to judgment by so many law-wonk

and “movement” (love that word) conservatives;


(2) the bitterness in the bickering between those who 

support Miers and those who oppose her


(3) the cocksure assertion by so many “federalists” that

only their construction-theory-alchemy offers an orthodox,

objective mechanism for interpreting the Constitution;


(4) their demand for affirmative action — sorta like a quota —  mjudge

ensuring a conservative, pointy-headed, strict-constructionist

or originalist seat on the Supreme Court; and


(5) the constant complaining by conservative intellectuals that

they have heroically endured the gauntlet of academia (and

think-tankademia), while Harriet Miers has purportedly never

done “anything brave, anything that took backbone.”  [Note:

Hamilton, Madison and Jay were real revolutionaries, as well as 

intellectuals, who truly risked their lives by living their principles;

and Harriet Miers was a true trailblazer for women in the muy

macho Texas Bar.]

With all this in mind, I went to bed last night intending to spend a good  

deal of time today with The Federalist Papers.   To my amazement, an

email arrived at my In Box overnight that seems to have saved me a lot

of time.  I don’t know the identity of the sender, who used the pseudonym

PubliEsq.  The Subject line rather cryptically says: “you can’t always

pick your followers.”  There was no explanation in the message, but

merely a number of passages from The Federalist Papers, with links to

an online version.  


MadisonMug I’m not going to speculate on PubliEsq‘s purposes.  I won’t even 

add our breathless punditry to discern lessons we might apply to the Miers

confirmation process, or to point fingers at those who may be violating

the spirit of Hamilton, Madison and Jay



Instead, I’m going to place the excerpts — from five of the numbered papers —

in a separate post, available here, and spotlight below a few lines from each

of them, which were in bold print in the version sent by PubliEsq.  Those who

are far more familiar than I with TFP may be able to point us to other pertinent

sections.  My hope, and probably that of PubliEsq, is that fair-minded people

will draw reasonable conclusions from the text and start to act accordingly.



tiny check  from Federalist No. 1

. . . we, upon many occasions, see wise and good men on the

wrong as well as on the right side of questions of the first

magnitude to society.  This circumstance, if duly attended to,

would furnish a lesson of moderation to those who are ever

so much persuaded of their being in the right in any controversy.


. . . Ambition, avarice, personal animosity, party opposition, and many   FedPapersG

other motives not more laudable than these, are apt to operate as well

upon those who support as those who oppose the right side of a question.

tiny check  from Federalist No. 10:


The latent causes of faction are thus sown in the nature of man; and

we see them everywhere brought into different degrees of activity, according

to the different circumstances of civil society. A zeal for different opinions

concerning religion, concerning government, and many other points,

as well of speculation as of practice; an attachment to different leaders

ambitiously contending for pre-eminence and power; or to persons of

other descriptions whose fortunes have been interesting to the human

passions, have, in turn, divided mankind into parties, inflamed them with

mutual animosity, and rendered them much more disposed to vex and

oppress each other than to co-operate for their common good. So strong

is this propensity of mankind to fall into mutual animosities, that where no

substantial occasion presents itself, the most frivolous and fanciful

distinctions have been sufficient to kindle their unfriendly passions and

excite their most violent conflicts 

“tny check”  from Federalist No. 37:

[These papers] . . . solicit the attention of those only, who add to a

sincere zeal for the happiness of their country, a temper favorable to

a just estimate of the means of promoting it.        


Persons of this character will proceed to an examination of the plan submitted

by the convention, not only without a disposition to find or to magnify faults; but

will see the propriety of reflecting, that a faultless plan was not to be expected.

Nor will they barely make allowances for the errors which may be chargeable on

the fallibility to which the convention, as a body of men, were liable; but will keep

in mind, that they themselves also are but men, and ought not to assume an

infallibility in rejudging the fallible opinions of others.  . . . . 


FedPapers   Experience has instructed us that no skill in the science of govern-

ment has yet been able to discriminate and define, with sufficient certainty, its three

great provinces the legislative, executive, and judiciary; or even the privileges and

powers of the different legislative branches. Questions daily occur in the course of

practice, which prove the obscurity which reins in these subjects, and which puzzle

the greatest adepts in political science. . . .


Here, then, are three sources of vague and incorrect definitions: indistinctness of

the object, imperfection of the organ of conception, inadequateness of the vehicle of

ideas. Any one of these must produce a certain degree of obscurity. . . .  There

are features in the Constitution which warrant each of these suppositions; and as far

as either of them is well founded, it shows that the convention must have been

compelled to sacrifice theoretical propriety to the force of extraneous


tiny check  from Federalist 78:

To avoid an arbitrary discretion in the courts, it is indispensable that they should be

bound down by strict rules and precedents, which serve to define and point out their

duty in every particular case that comes before them; and it will readily be conceived

from the variety of controversies which grow out of the folly and wickedness of mankind,

that the records of those precedents must unavoidably swell to a very considerable bulk,

and must demand long and laborious study to acquire a competent knowledge of them.

Hence it is, that there can be but few men in the society who will have sufficient

skill in the laws to qualify them for the stations of judges. And making the proper

deductions for the ordinary depravity of human nature, the number must be still

smaller of those who unite the requisite integrity with the requisite knowledge.



update: Today’s NYT has an article that reminded me of the

treatment of Harriet Miers in the blogisphere — “Confronting

Bullies Who Wound with Words” (Oct. 16, 2005).  Although

its focus is middle school, the article notes:

“And the Internet is making matters a great deal worse . .

because it provides a cloak of anonymity and removes

physical size and bravery from the equation. Children as

young as 7 or 8, who would never have dared to belittle

or confront a classmate face to face, are empowered to

be vulgar and vengeful at the keyboard.”


vain clouds
forming vain peaks
in vain


vain man…
the autumn moon




sparrows at the gate–
the brothers’ first


       translated by David G. Lanoue    




all through
his temper tantrum
her calm




after speaking importantly
  she quickly resumes
  sucking her thumb


      Tom Clausen

           from Homework (2000)





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