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August 2004
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Spots, Pores, Dripping Briars

Flattery always slipped off the Prince like water off the leaves of a water lily: it is one of the advantages enjoyed by men who are at once proud and used to being so. 'This fellow here seems to be under the impression he's come to do me a great honor,' he was thinking. 'To me, who am what I am, among other things a Peer of the Kingdom of Sicily, which must be more or less the same as a Senator. It's true that one must value gifts in relation to those who offer them; when a peasant gives me his bit of cheese he's making me a bigger present that the Prince of Làscari when he invites me to dinner. That's obvious. The difficulty is that the cheese is nauseating. So all that remains is the heart's gratitude, which can't be seen, and the nose wrinkled in disgust, which can be seen only too well.'

-- Giuseppe Tomasi di Lampedusa, The Leopard

Returned from a Long Day's Journey Through Deposition -- from which I have emerged with exactly the same understanding of the strengths and weakness of the case as I had before, but a much better understanding of why they are the strengths and weaknesses of the case -- the occasion calls for a Quote From Whatever I Happen to Be Reading Just Now, and a string of unrelated but interesting links. Behold:

♣ Apropos of my endorsement of Professor Ann Althouse's weblog, how can one resist a post with the 18th-century-novelesque title: "A new TV arrives, DVDs are deployed to test its quality, and, a propos of Kerry's new tan, the subject of disease perceived as health is discussed"? One cannot, and you mustn't.

♣ Portland, Oregon's finest (weblog division), Michael J. Totten, explores the soul-blasting architectural horror that is the suburbs . . . of Paris.

♣ Cowtown Pattie knows it's hard to be a Texan when your pores are unrefined: "Just mention sleeping with day-old makeup on at the female powerlunch table and you are greeted with rows of raised, but deftly waxed eyebrows, giving the eerie feeling of having lunch with a group of hoot owls."

♣ Doctor-poet-modernist giant William Carlos Williams would have been 121 years old a couple of weeks ago, which is as good an excuse as any to link back to Jonathan Mayhew's mid-June post pointing out the virtue to be found in even the late, flawed work of a genuinely interesting poet. [Go ahead, click through, if only to read the poem, "Raindrops on a Briar."] ::: wood s lot ::: noted the birthday with an abundance of WCW links, a nice reproduction of Breughel's Kermesse to accompany the poem it inspired and, down below and worth the scroll, Kenneth Koch's hilarious Variations on a Theme by William Carlos Williams (which sends up this well known WCW poem, but you already knew that).

Stepped Out For A Moment - Try Again Later

It is a remarkably distracting sort of a week, so I will probably have nothing much new to say until Thursday or thereabouts. Not wanting to leave you with nothing to read, allow me please to refer you elsewhere:

Law Professors Are Interesting People; Wine is Interesting, Too

Two fresh additions to our Lawyer and Law Professor links. First, I will belatedly join those encouraging you to read Professor Ann Althouse. She covers a range of topics legal, political and cultural (as suggested by her eclectic profile). Professor Althouse has received many links, of which this is another, to her detailed review of the evolution of her views concerning Senator Kerry. In another item, she recalls those early innocent days of the campaign when we were wowed by John Kerry, Master of Doggerel:

How come we don't hear about Kerry's penchant for poetry anymore? (Here's an old post of mine making fun of Maureen Dowd's column about Kerry's interest in poetry. Key line: "Maureen, the man isn't a poet, he's a windbag!") Who even remembers when--or why--there was an argument that Kerry was better than Bush because of his interest in poetry?

Hmm. I seem to recall that I remarked on that topic at the time, as well.
[UPDATED (to add Rhetorical Question)]: And speaking of poetry, what ever happened to the Senator's embrace of Langston Hughes?

Meanwhile, UCLA Law's own Professor Bainbridge has launched an offshoot weblog to focus on his interest in wine. He calls it "Professor Bainbridge on Wine," and so shall I.

While on the subject of Wine, I should add a belated link to the daily short takes on that topic by Robert Lawrence Balzer, posted by local Los Angeles classical music station K-Mozart 105.1. Not a weblog, these are transcripts of RLB's daily "Word on Wine" radio pieces. Robert Lawrence Balzer occupies an exceptionally prominent position in the wine education of two generations of my family, and ought to be the subject of a longer appreciation here some day. [Belated thanks to my father for the Balzer link.]

And Speaking of Things I Ought To Do

David persists in reminding me of my well-intentioned but as yet unfulfilled promise to take up the subject of the meaning of "frivolous" as applied to lawsuits. In the meantime, that march has been stolen pretty thoroughly by the very fine discussion of the topic at

When not serving as my conscience, David has devoted two posts to accumulating haiku in honor of the Harvest Moon.

Rick, meanwhile, suggests that we Just Shoot It.

Fox News (No, Not That Fox News)

Sometimes you find a yearning for the quiet life,
The country air and all of its joys,
But badgers couldn't compensate at twice the price
For just another night with the boys, oh yeah,
And boys will be boys, will be boy-oy-oys . . .

-- Roxy Music, "Editions of You"

Via Andrew Stuttaford at The Corner [National Review Online] I learn that Otis Ferry, the 21-year old son of Bryan Ferry -- leader of the aforecited Roxy Music, of which band Mr. Stuttaford opines correctly that "their first two albums were among the greatest ever recorded," though my personal enthusiasm would perhaps expand that list to at least four of their first five albums -- is, of all things, the UK's youngest joint master of foxhounds. As such, he has placed himself in the forefront of those fighting the Blair government's ongoing effort to ban foxhunting, and was among those who last week invaded the House of Commons in protest -- "the worst breach of Commons security in living memory," leading to institution of greater precautions than had previously been taken against, say, international terrorists.

Stuttaford links to this Telegraph profile of Otis, who apparently makes all the country girls swoon. Those who can set aside whatever personal revulsion they may feel toward the hunt will find the younger Mr. Ferry more than somewhat engaging, and quotable.

On the parliamentary invasion:

Does he regret his raid on the mother of all parliaments, along with seven other protesters? 'I didn’t want to do anything stupid like dressing up as Batman and swinging off Nelson’s Column in Trafalgar Square. This was different. MPs were discussing my future and our freedoms — we needed to be there.'

When Otis found his way into the debating chamber, he initially felt relieved. 'It would have been embarrassing if it had gone off halfcock. We didn’t have lots of inside knowledge. But I’ve got a good sense of direction and the corridors were quite straight.'

On his life vs. his father's and his argument with the Commons:

'I suppose we couldn’t be living more different lives,' Otis says. 'But I prefer the unpretentiousness of country people to the music scene. There aren’t many with their noses in the air. Everyone speaks their mind. That’s what makes me so angry about the MPs.

'They say it’s all about class war, but many of the hunt followers are workingclass. They’d just prefer to have people like me clubbing in London rather than cubbing. That’s stupid. At least, in the country, I am doing some good chasing the vermin.'

And of course, on The Queen:

His other hero is the Queen. 'It’s a sad story if our monarch can’t hunt any more. She’s wonderful. I look at all those MPs who have never even bothered to come to a hunt, and I think: you gimps - you haven’t even done your homework. I’m not very trendy but, jeepers, those Labour backbenchers are such losers.'

He Who Waughs Last . . .

Apropos of poor, floundering CBS:

By happy happenstance, I am in the midst of reading Evelyn Waugh's 1937 novel Scoop, frequently cited for its trenchant satire -- oooh, "trenchant satire," that's a bit of reviewese, i'n'it? -- of journalists and journalism. The book is so often mentioned when the press needs tweaking that I am surprised to find through Google only one other reference to it so far in connection with Dan Rather's discomfiture. I am in a service profession, so allow me please to fill the gap with a pair of excerpts.

Waugh's hero, William Boot, whose expertise runs more to badgers and other such country matters, is among a band of competing journalists dispatched to the African nation of Ishmaelia to cover an incipient civil war. En route, Boot meets Corker of the U.N. -- that's Universal News, an AP/UPI-like news service, not the as yet undreamt of international marching band and chowder society -- who famously explains the basics of the craft:

Corker looked at him sadly. ‘You know, you’ve got a lot to learn about journalism. Look at it this way. News is what a chap who doesn’t care much about anything wants to read. And it’s only news until he’s read it. After that it’s dead. We’re paid to supply news. If someone else has sent a story before us, our story isn’t news. Of course there’s colour. Colour is just a lot of bulls’-eyes about nothing. It’s easy to write and easy to read but it costs too much in cabling so we have to go slow on that. See?’

After an aggravating rail journey to the interior, Boot and company reach the Ishmaelian capital -- already occupied by such luminaries as "Wenlock Jakes, highest paid journalist of the United States, [who] scooped the world with an eye-witness story of the sinking of the Lusitania four hours before she was hit" -- only to find nothing worth reporting. For lack of anything else to say, one Shumble sends off a cable identifying a rail employee as a covert Soviet agent. When all the other reporters are deluged with demands from their papers to expand on the story, Boot and Corker discuss their options:

[Boot:] ‘But he is a railway employee. I saw him in the ticket office today when I went to ask about my luggage.’

‘Of course he is. But what good does that do us? Shumble’s put the story across. Now we’ve got to find a red agent or boil.’

‘Or explain the mistake.’

Risky, old boy, and unprofessional. It’s the kind of thing you can do once or twice in a real emergency but it doesn’t pay. They don’t like printing denials -- naturally. Shakes public confidence in the press. Beside it looks as if we weren’t doing our job properly. It would be too easy if every time a chap got a scoop the rest of the bunch denied it. And I will hand it to Shumble, it was a pretty idea . . . the beard helped of course . . . might have thought of it myself if I hadn’t been so angry.’

Ho ho.

Delicious and Judicious

This morning at my legal weblog, Declarations and Exclusions, I have posted a report on a new appellate decision the substance of which will only be of interest to hardwired appellate practitioners. But oh! the sublimity with which the Court has set out its analysis leads me to hope that at least the occasional Fool reader will appreciate it as well. Here is the introductory paragraph of my post, from which you can judge the level of your interest:

Once in a while, if you are an appellate judge with more than a little learnin’, you just have to let yourself go. You simply must write an opinion in which you carefully and thoroughly explain why the appellant’s case must be dismissed, because his attorneys have fallen victim to a “particularly well-camouflaged trap for the unwary” secreted within a critical procedural rule. And while you are about it, you must pepper the opinion with witticisms, citations to Shakespeare and the Bible, and passing remarks on words that are needed but oddly unavailable in standard English. Yesterday, Presiding Justice Sills of Division Three of the Court of Appeal for the Fourth District let himself go in just that way.

If that your fancy feels a tickling sensation from reading that excerpt, you can click through for more, much more, here.


"A puckish satire of contemporary mores. A droll spoof aimed more at the heart than the head."
-- Woody Allen, as Boris, reviewing the Russian Army's "hygeine play" in Love and Death [one of the older, funny ones]

From the Telegraph, Tom Payne presents a Lexicon of Reviewese, gathering in one convenient compendium all those tics and clichés that afflict the typical book review section. Examples include "panoramic sweep," "searing indictment" and the all too popular "wickedly funny". And then there's this:

editor should be shot – wouldn't it be better to shoot those who write 'the editor should be shot'? The phrase normally appears in connection with a list of minor quibbles. But to punish editors with this ultimate sanction would lead to a smaller number of editors, not only through their execution but also by discouraging people from becoming editors in the future. The grim consequence of this would be a major increase in minor quibbles.

[Link via Arts & Letters Daily.]

The Jury is Still [Passed] Out on This One

Fig. 1 -- The Goddess Justice, after a night out with the Goddess of Folly.

Earlier in the week on his Notes from the (Legal) Underground weblog, Evan Schaeffer propounded a Query to Working Lawyers: Is It Professionally Acceptable to Drink at Lunch? I contributed a slightly sozzled reminiscence in the comments. The consensus appears to be that it is Professionally Unacceptable in most circumstances to imbibe potent spirits on the lunch hour because (surprise!) doing so is likely to impair one's legal performance in the afternoon.

Here's a related question: Is It Jurisprudentially Acceptable to Drink During Deliberations? The New York Times reports on efforts to overturn the conviction of a retired firefighter, accused of stealing souvenirs from the World Trade Center site, because the defendant's attorneys have demonstrated that Juror No. 4 was drunk:

They said that after the guilty verdict, he approached the defendant, his brother, wife and lawyers, wobbly and glassy-eyed, to apologize for finding him guilty and telling him that he understood how difficult it must have been to work at the World Trade Center site. Someone smelled alcohol on his breath.

The judge scheduled a hearing, and in May, his fellow jurors were called back to court to testify about his behavior during deliberations. Their descriptions call to mind the guy on the next bar stool who has had a few too many: 'agitated,' 'overly effusive,' 'scatterbrained' and 'inappropriately forthcoming with opinions and directions.'

Finally, Juror No. 4 took the stand and admitted he had filled his 16-ounce Poland Spring bottle half with vodka, half with water, nipping at it during the four hours of deliberations after eating half of a ham and cheese hero. He had drained two-thirds of the bottle during deliberations, and after the verdict was read he took a last 'big swig,' he testified.

Yesterday, Justice Ellen M. Coin of State Supreme Court in Manhattan issued her ruling: the verdict should stand.

The reason? There is apparently no law against drinking while serving as a juror and deliberating the fate of a fellow New Yorker.

* * *

The justice, in her opinion, relied on a 1987 United States Supreme Court decision involving a jury that made Juror No. 4 look like a Calvinist preacher. Those jurors, in a case that was later heard by the United States Court of Appeals for the 11th Circuit, drank, used cocaine, smoked marijuana, sold drugs to one another and slept through a conspiracy and fraud trial that one juror called 'one big party.'

In that case, the court ruled: 'However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an "outside influence" than a virus, poorly prepared food or a lack of sleep.'

There you have it, friends: Justice is not merely blind, it's blind drunk.

Jorge on Henry

It is the sort of story that Henry James (whose writings were first revealed to me by Clara Glencairn de Figueroa, one of the two protagonists of my story) might not have scorned to use. He would have consecrated more than a hundred tender and ironic pages to it, and would have embellished them with complex and scrupulously ambiguous dialogue; he might well have added a touch of melodrama. The essence of the story would not have been altered by its new setting in London or Boston. But the events in fact took place in Buenos Aires, and there I shall leave them.

-- Jorge Luis Borges, "The Duel" (A. Hurley, trans., from Collected Fictions)