Thursday, January 09, 2014

Were you alone or by yourself? Kudos to legal eagles

“Books aren’t made in the way that babies are: they are made like pyramids, There’s some long-pondered plan, and then great blocks of stone are placed one on top of the other, and it’s back-breaking, sweaty, time consuming work. And all to no purpose! It just stands like that in the desert! But it towers over it prodigiously. Jackals piss at the base of it, and bourgeois clamber to the top of it, etc. Continue this comparison.”

– Gustave Flaubert

Apparently it's okay in polite society to say that the Supreme Court has too many Catholics, as Jamie Stiehm does in the US News: The Catholic Supreme Court’s War on Women

Court Jesters records this question asked by a Vancouver lawyer: "what colour were the blue jeans?" As well as the Canadian lawyer who single-handedly (or mouthily) asked these immortal questions:

Q. How long have you known your brother?
Q. Were you alone or by yourself?
Q. How long have you been a French Canadian?
June 1992 - Of the Rankest Sort From Robert Finlay of Honolulu, HI, this testimony from "a hotly contested murder trial" involving a difficult, albeit zoological, point of evidence:
Prosecutor: On the photograph, what are on the brown, blood-like smudge?
Mr. Heu: From my zoological background, I keyed in on it because it had ants on it. [This was significant because it] indicated to me that it was fresh material rather than something that was days or weeks old.
Prosecutor: First of all, is there a difference between worker ants and soldier ants?
Mr. Heu: Yes. The soldier ants have large heads and the worker ants have small heads. The worker ants go out to forage - to find something. If it's a large find, the word will go back to the ant nest. The ants will send out more workers and if it's a big find, they'll send soldiers along.
Defense Attorney: I object to the materiality of the witness' statement.
The Court: Your objection is on the grounds of relevance?
Defense Attorney: Yes, sir. It's also hearsay as to what the ants tell each other.
The Court (wisely): Objection overruled.

I love David Hyman's new essay Why Did Law Professors Misunderestimate the Lawsuits against PPACA? It starts off with a bang:

Law professors love hypothetical questions. So, let’s try a few. What if, in the highest profile case to hit the Supreme Court in the last generation on an issue of central importance to the scope of federal power, virtually every constitutional law scholar was wrong about how the Court would decide the case? And not just a little wrong, but “not remotely in the ballpark” wrong (i.e., declaring that an argument the other way was “frivolous, and deserving of sanctions”)? Worse still, what if when it first became apparent that they might be wrong, what if these law professors threatened that the Supreme Court would lose its legitimacy if it decided the case the “wrong” way? And, when it finally became irrefutable that these scholars were completely wrong, what if they did not do what any rational person would do (apologize, and try to figure out how and why they got it so wrong), but instead condemned the Supreme Court for failing to adhere to their view of what the law required? Finally, what if this behavior was not limited to law professors who actually do constitutional law? What if law professors with no obvious expertise in constitutional law signed petitions and made public statements declaring that the arguments of those challenging the constitutionality of PPACA were frivolous?
Of course, these are not hypothetical questions, but instead reflect the performance of the nation’s law professors before, during, and after the Supreme Court resolved the constitutional challenges to the Patient Protection and Affordable Care Act (“PPACA”).  The Story gets better as taxing humble pie is served...