Write at least one opinion in which every word is a contraction

United States Supreme Court Chief Justice John Roberts:

On June 29, at precisely 6:30 a.m., move part in hair from left side of head to the right side; change it back moments later

United States Supreme Court Associate Justice Sandra Day O’Connor (retired):

Track down John Riggins; tell him to “loosen up”

Guido Calabresi, Senior Judge, United States Court of Appeals for the Second Circuit:

Climactic showdown with 101-year-old Ron Coase atop the Eiffel Tower

United States Supreme Court Associate Justice Anthony Kennedy:

Finally receive “SWNGVOT” personalized license plate from the Washington, DC, Department of Motor Vehicles

***

If any of you have heard of any other judge’s resolution, please feel [...]]]> Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit:

Write at least one opinion in which every word is a contraction

United States Supreme Court Chief Justice John Roberts:

On June 29, at precisely 6:30 a.m., move part in hair from left side of head to the right side; change it back moments later

United States Supreme Court Associate Justice Sandra Day O’Connor (retired):

Track down John Riggins; tell him to “loosen up”

Guido Calabresi, Senior Judge, United States Court of Appeals for the Second Circuit:

Climactic showdown with 101-year-old Ron Coase atop the Eiffel Tower

United States Supreme Court Associate Justice Anthony Kennedy:

Finally receive “SWNGVOT” personalized license plate from the Washington, DC, Department of Motor Vehicles

***

If any of you have heard of any other judge’s resolution, please feel free to relate it in the comments below.

In any event, in honor of Time’s unveiling of “The Protester” as its 2011 Person of the Year, consider the following trivia question:

Who is, or was, the only United States judge to be named Man (or Person) of the Year while he (or she) was sitting on the bench?

(And no, one cannot point to Time’s designation, say, of “American Women” as its People of the Year for 1975, and say that this cohort captured many judges; we’re talking about specific individuals here—even though [...]]]> As Gerard indicated when he introduced me to this blog, he and I were on the Stanford College Bowl team together way-back-when.  I remain amazed by Gerard’s encyclopedic knowledge of Roman emperors. I was merely the go-to guy for pop culture and sports trivia.

In any event, in honor of Time’s unveiling of “The Protester” as its 2011 Person of the Year, consider the following trivia question:

Who is, or was, the only United States judge to be named Man (or Person) of the Year while he (or she) was sitting on the bench?

(And no, one cannot point to Time’s designation, say, of “American Women” as its People of the Year for 1975, and say that this cohort captured many judges; we’re talking about specific individuals here—even though North Carolina Supreme Court Chief Justice Susie Sharp was among the women on the cover of that issue.)

The answer, after the jump.

The answer is John Sirica, Chief Judge for the United States District Court for the District of Columbia, who was named Time’s Man of the Year for 1973.  The “while he (or she) was sitting on the bench” caveat was necessary because Kenneth Starr was the co-Man of the Year back in 1998 (along with Bill Clinton); by that time, of course, Starr was no longer sitting on the United States Court of Appeals for the District of Columbia.  Also, former Supreme Court Justice James F. Byrnes was Time’s Man of the Year for 1946; by that time, however, Byrnes had long since left the Court for other positions.

Dear Sir or Madam,

Please find attached, for your review and publication consideration, a copy of my recent article, “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.” As you will see, my scholarship sheds light on this heretofore overlooked, but (as I discuss) extremely important, provision.

I am prepared to give the Impressive Law Review exclusive publication rights for this piece until January 12, 2012.

Please contact me at your first convenience, should you wish to publish this article.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review From: Kyle Graham Date: January 12, 2012 Re: [...]]]> To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 5, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Dear Sir or Madam,

Please find attached, for your review and publication consideration, a copy of my recent article, “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.” As you will see, my scholarship sheds light on this heretofore overlooked, but (as I discuss) extremely important, provision.

I am prepared to give the Impressive Law Review exclusive publication rights for this piece until January 12, 2012.

Please contact me at your first convenience, should you wish to publish this article.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 12, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

This message follows upon my earlier note to you, sent via e-mail on January 5, 2012. As indicated in that e-mail, I had originally planned to make my article available to other journals as of today. However, I appreciate that with the New Year, the Winter Break, and the various college football bowl games on television, you may not have been able to turn to the piece quite yet. Or, perhaps, you did not receive my earlier e-mail; I know how sometimes these messages can get lost in the wires. Accordingly, I am pleased to relate that I will continue to hold my “exclusive” window open for another two weeks, through January 26, 2012.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: January 26, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I am just about to distribute my article to a variety of other law journals via ExpressO—seriously, my right index finger is hovering above the “submit” button, even as my left hand types this message—but before I do, I want to make absolutely certain that you have (1) received the article; and (2) had an opportunity to review it.

Having not heard from you as yet, I assume the answer to both of these questions is “yes,” but one never knows.  I really think the piece is a good fit for your journal, especially seeing as how your law school is in a coastal state. Accordingly, I am pleased to relate that I will grant one final extension of my “exclusive” window, now holding it open to February 3, 2012.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 3, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Just a friendly reminder that this is the expiration date of my “exclusive” offer!

Regards,

Kyle Graham

P.S. Did you get the gift basket I sent?

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 10, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

This letter follows upon my earlier communications. As previously related, I have circulated my article to other journals via ExpressO, such that my “exclusive” offer is no longer in effect. However, I remain open to publication with your journal; please contact me if interested.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 21, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I have just received offers to have my article published by several highly reputable journals that I cannot disclose at this time and which I absolutely, positively did not just make up.  Given this turn of events, I ask that you expedite your consideration of my piece.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: February 29, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

Thank you very much for your letter of February 24, 2012; it is nice to finally hear from you, and to put an autopen signature to your journal’s face.

I admit that I was both surprised and impressed by your diligence in checking with the editorial board of, apparently, every other law journal in the United States and Canada.  Based on your report, I must acknowledge that I may have misconstrued their prior communications to me.  In my defense, how was I to know that an advisement that my article was “under review” was anything less than a binding commitment to publish?  I’m just a law professor, not a rocket scientist, after all.

In any event, I do hope that this little misunderstanding does not affect your continued consideration of my article. I remain eager to see it published in your journal.

I may be in the neighborhood of your institution for a conference within the next few weeks.  If so, I hope you will not mind if I take the liberty of dropping by your office to discuss the potential publication of my piece.

Regards,

Kyle Graham

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: March 12, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

I write this letter to acknowledge my receipt of a restraining order, apparently taken out by your publication against me.

In response, this letter also serves as a formal withdrawal of my article, “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution” from consideration by your publication.  This is your loss, but I feel that your recent actions leave me no choice in the matter.

Regards,

Kyle Graham

P.S. There was a glaring citation error on page 2340 of your last volume.  Which sucked, by the way.

***

To: Editor-In-Chief, Impressive Law Review
From: Kyle Graham
Date: May 26, 2012
Re: My Article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution.”

How are you doing? Well, I hope.  How are classes?  Looking forward to that post-graduation clerkship?

I also hope that you realize by now that I was just joking with my last message. If you don’t remember, don’t worry about it. It was nothing important. I simply wanted to “lighten” what I am certain is a laborious review process for you and your staff.

In any event, I write to offer my article “Madison’s ‘dock-Yards’? The Founding Fathers, Sailing, and Article I, section 8, clause 17 of the United States Constitution” for inclusion in your online journal “Supplement.” As you will see, I have modified the introduction and thesis so as to draw a closer connection to the 2013 America’s Cup, such that I believe the piece will be cited frequently in connection with that regatta.

Please contact me at your first convenience, should you wish to publish this article.

Regards,

Kyle Graham

8. Frequent integration of trendy words and phrases like “jeggings,” “Winning!” and “Tebowing” into article titles

7. Legally changing my name to “Eddie Murphy” for one month prior to, and following, the posting of each new piece, because if Eddie Murphy were to write a law-review article, that would really be something else

6. Ill-fated promise to students that if I get up to 5,000 total downloads, A+ grades for everyone, unless I don’t like them

5. Offering Charlie Sheen $2,500 to rave about latest article on Twitter

4. Having article titles painted on the sides of the turkeys thrown from the WKRP helicopter pursuant to their Thanksgiving giveaway

3. Extensive unsuccessful efforts to have Oprah name “Why Torts [...]]]> 9. Offering Justin Bieber $2,500 to rave about latest article on Twitter

8. Frequent integration of trendy words and phrases like “jeggings,” “Winning!” and “Tebowing” into article titles

7. Legally changing my name to “Eddie Murphy” for one month prior to, and following, the posting of each new piece, because if Eddie Murphy were to write a law-review article, that would really be something else

6. Ill-fated promise to students that if I get up to 5,000 total downloads, A+ grades for everyone, unless I don’t like them

5. Offering Charlie Sheen $2,500 to rave about latest article on Twitter

4. Having article titles painted on the sides of the turkeys thrown from the WKRP helicopter pursuant to their Thanksgiving giveaway

3. Extensive unsuccessful efforts to have Oprah name “Why Torts Die” as her Book of the Month

2. “Rick-Rolling” people over from Cass Sunstein’s latest article on SSRN

1. Prominent advertisements that each article is guaranteed to be “100 percent Kardashian-Free”

1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student [...]]]> This is simply my list of the eight most suspect types of articles; I appreciate that others may suggest different, or additional, entries.

1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student note. It is my tenure piece.”

6. The Turf Staker

“My pre-emption check discovered no articles that cover this territory. I pretty much worked backward from there.”

7. The Half-Hearted Symposium Submission

“We would have tried harder, but hey, we’re talking about a symposium here.”

8. The Torn from the Headlines

“Few would recognize that the United States Supreme Court’s recent decision in ___ vs. ___ would fundamentally alter ___ law. Yet it did, or at least, you won’t be able to prove that it didn’t until this article is already well on its way to publication.”

Bay Area radio struggles to have decent music. I tend to cycle through the few stations that may have something of interest. A recent addition to the dial focuses on 60s. 70s, and 80s. As a competitor points out, the new comer tends to repeat the same track several times a day. Recently the song Escape (The Pina Colada Song) has been playing quite a bit. The funny thing to me is that yoga and health food seem to have been dating and compatibility differentiators for more than 30 years. The style of the song and especially the attire, however, may not be as timeless; just reminders [...]]]> “If you like Pina Coladas, and getting caught in the rain.
If you’re not into yoga, if you have half-a-brain.”

Bay Area radio struggles to have decent music. I tend to cycle through the few stations that may have something of interest. A recent addition to the dial focuses on 60s. 70s, and 80s. As a competitor points out, the new comer tends to repeat the same track several times a day. Recently the song Escape (The Pina Colada Song) has been playing quite a bit. The funny thing to me is that yoga and health food seem to have been dating and compatibility differentiators for more than 30 years. The style of the song and especially the attire, however, may not be as timeless; just reminders of the end of the seventies and the start of eighties (It was the last number 1 of the seventies and first of the eighties). Oddly that decade seems a bit more sane regarding taxes.

It took more than two years to produce that tax code overhaul. During that time, Reagan went on the road to plead his case for the plan. At a high school in Atlanta, Ga., in 1985, Reagan said they were going to “close the unproductive loopholes that allow some of the truly wealthy to avoid paying their fair share.”
Meanwhile in Congress, Democrats and Republicans worked together to merge competing proposals for tax reform. Still in office today, Democratic Sen. Patrick Leahy of Vermont was there during the passage of the bill. He says it was a different era.
“We had a lot of grownups in both parties, people who actually wanted the government to work,” Leahy says.

All of which makes me wish there was a world where I could write a personal ad seeking a new politician and find that the one who turned up was already in place. Now that is a fantasy.

Anyway, enjoy the song. Oh as moment of who knew: The song was released on September 21, 1979. The movie “10” which is a rather similar story and also a huge hit of the era was released October 5, 1979. As far I know they were not connected directly; yet they stuck together in my head because of the story lines.

But what to do with contested features, which can be interpreted in different ways by different audiences? For example, some may find bloodshot eyes frightening; others see them as evidence of heroically hard work. Science has an answer: do a study. And new research conclusively shows that red eyes are “associated with the sad, unhealthy and unattractive:”

This is the first study to demonstrate [...]]]> Appearances can be deceiving. Media can easily make people appear worse or better than they actually look. Certain tacos may seem meatier than they are; others falsely flaunt meatlessness. The “beauty retouch mode on the new Panasonic Lumix DMC-FP7 camera” is now bringing image massaging to the masses. Soon every picture will be a glamour shot.

But what to do with contested features, which can be interpreted in different ways by different audiences? For example, some may find bloodshot eyes frightening; others see them as evidence of heroically hard work. Science has an answer: do a study. And new research conclusively shows that red eyes are “associated with the sad, unhealthy and unattractive:”

This is the first study to demonstrate that eye redness is perceived as a cue of emotion. . . . “Standards of beauty vary across cultures, however, youth and healthiness are always in fashion because they are associated with reproductive fitness,” said [lead author Dr. Robert R.] Provine. “Traits such as long, lustrous hair and smooth or scar-free skin are cues of youth and offer the beholder a partial record of health.

Now clear eye whites join these traits as a universal standard for the perception of beauty and a cue of health and reproductive fitness. Given this discovery, eye drops that ‘get the red out’ can be considered beauty aids.”

I am glad that’s settled. But perhaps, ala Jonah Lerner, the study authors should concede that an artist got there first. Namely, Hank Penny’s classic “Don’t Roll Those Bloodshot Eyes At Me” (including the immortal lines, “Your eyes look like a roadmap/I’m scared to smell your breath”). Score one for consilience!

Image Credit: Coleend.

The Dean said he replied: “In the corporate world, it’s DOG EAT DOG, whereas in the academic world, it is exactly the other way around.”  Those assembled at the Faculty Meeting laughed knowingly.

Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean,  quipped: “Do you mean, in academia, it’s GOD EAT GOD?”  Louder knowing laughter erupted and I still laugh about it today.

Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for [...]]]> At a Faculty Meeting years ago, our distingished new Dean, who’d been Dean elsewhere, President of a University, and CEO in the private sector, began by saying how people often ask him: “What’s the difference between the academic world and the corporate world?” 

The Dean said he replied: “In the corporate world, it’s DOG EAT DOG, whereas in the academic world, it is exactly the other way around.”  Those assembled at the Faculty Meeting laughed knowingly.

Just as the guffaws died out, my great and wonderful friend, a learned faculty member, and former Dean,  quipped: “Do you mean, in academia, it’s GOD EAT GOD?”  Louder knowing laughter erupted and I still laugh about it today.

Academia can be a wonderful place. Yet it’s no Ivory Tower and can be viscious , especially for younger scholars, doing graduate work at elite institutions.  It usually gets better but it can be tough later too. 

There are many ways to cope. One is remembering to research and write for yourself, in the first instance, not to please or even influence others.  Of course, it can be rewarding to have those effects and, especially, to be cited favorably, but that usually comes in due course.

Keeping a sense of humor and some sobriety about also helps.  Whenever I hear about the lion cages of graduate study, or vexing insecurity during early years of untenured appointments, I share the foregoing memorable scene.

I like how the various articles (contributed by entrepreneurs, theorists, designers, and others) hang together. The terrific design work is a refreshing change from the barren pages of business blogs, law reviews, and academic books (though it looks like some legal scholars are renewing interest [...]]]> The New Museum of Contemporary Art has hosted an exhibit called “The Last Newspaper” the past few months. Part of the exhibit centers around newspaper-based art. Another focus has been a “hybrid of journalism and performance art,” as groups of editors and writers developed “last newspaper sections” in areas ranging from real estate to sports to leisure. I co-edited the business section, which is available here in a low-res copy. I’m posting our editorial statement below.

I like how the various articles (contributed by entrepreneurs, theorists, designers, and others) hang together. The terrific design work is a refreshing change from the barren pages of business blogs, law reviews, and academic books (though it looks like some legal scholars are renewing interest in visual aspects of justice).

Virtual Values
(Editorial Statement for the Business Section of the New City Reader, Dec., 2010)

Ours has been called a “weightless economy.” Once gold served as money; then paper became our currency; now the Federal Reserve can create $600 billion with a few keystrokes at a Washington, D.C. computer terminal. We increasingly value “intellectual property” over the materials it shapes. Leading companies seek to hold only brands, patents and trade secrets, contracting out nonessential activities. Even the state has been encouraged to become “virtual,” hosting only the “highest value” activities and outsourcing mundane tasks like security.

Yet even digitized flows of electrons must zip along real cables, appear on real computer screens and be interpreted by real people. When disputes arise, litigants appeal to the slow machinery of justice. Even in the foreclosure mills of America’s foremost Ponzi State, Florida, “robo-signed” documents must be presented to real judges in person at actual desks.

In the business section of the New City Reader, we explore the intersections of the virtual economy with the material world. We examine how electronic flows of wealth and debt shape—-if not actually comprise-—the global economy. Near-instantaneous “flash trading” dominates some stock exchanges. Originally justified as a way of achieving price discovery more quickly, the technology now appears to be driving, rather than serving, trading strategies. Traders are building parallel network connections and reshaping the urban environment by creating “data districts” to gain a competitive edge; Kazys Varnelis examines how these developments are reshaping Manhattan and the entire tri-state region.

As we examine the physical basis of this high-frequency trading, we ask a few related questions: why should the evanescent flickers of numbers on a computer screen determine the price of cooking oil in Borneo or a mortgage in Brooklyn? If it’s good for traders to reduce inter-regional price differences in an hour, is it better to do so in 30 minutes? One minute? One millisecond? Are there diminishing returns for the strategy? And might the effort to encourage rapid arbitrage ultimately encourage the very distortions it was meant to reduce—just as tranched mortgage-backed securities, advertised as a new risk management technology, ended up exacerbating and spreading the very risks they were supposed to ameliorate and contain?

The mainstream media has rarely asked these questions. When they are addressed, pat answers abound about “liquidity” and the inexorable march of technology in markets. Satirizing this uncritical, near-automated journalism—still all too evident ten years after publication of Doug Henwood’s “After the New Economy” and Thomas Frank’s collection “Boob Jubilee”—Ray Cha fancifully assembles a decade of press clippings of business journal darlings gone bust into coverage for the new new thing online: a fake—but perhaps frighteningly plausible—Web 2.0 conglomerate called Lorem Ipsum. Twisting the knife a bit more, Cha also offers the end-point of the atomization of journalism and information: a roster of business best-sellers distilled into 140 characters.

It’s easy to just try to ignore all these trends, retreating into the narcotic comforts of the latest gadgets. In a rare turn as social critic, Heraclitus diagnosed that, “For the waking there is one world, and it is common; but sleepers turn aside each one into a world of his own.” John Cantwell slips into the world of local business and investigates how the new locative services we carry with us on our personal iDevices instead may have a totalizing effect on Main Street.

Stock markets on autopilot; consumption trapped in closed circuits of favors and baubles; a navel-gazing press unmoored from reality and a phantom public in turn unmoored from it: you’d be excused for finding our business section a bleak mirror of Great Recession. But the remnant of hope at the bottom of our Pandoran black box of perpetual financial crisis is fresh new thought about the foundations of economic life.

Check out Daniel Payne’s reflections on trust, the ultimate foundation of economy and society. If people lose trust in the value of products and services, deflation can set in; if they lose faith in the value of money, a flight to cash in on its current value can lead to inflation. In Brazil, a virtual currency called the Unit of Real Value helped save the country from runaway inflation when citizens came to trust a government plan to reset prices in “reals.” Local currencies may now offer a small scale exit from the ever less stable value of our skills and assets—yet as Karli Scott recounts in a firsthand account of Ithaca, New York’s HOURS currency, they too are entirely beholden to continuing confidence in their use.

Perhaps an American reset is in order. As John Maynard Keynes once put it, in times similar to our own, “The outstanding faults of the economic society in which we live are its failure to provide for full employment and its arbitrary and inequitable distribution of wealth and incomes.” Perhaps we fear this section resembles a terminal status update because so few of our contemporaries keep that insight in mind.

My own impulse is to treat colleagues and outside readers just like any other source, and to drop footnotes indicating their specific contributions. If someone gives me an idea that I would have footnoted had it been a published source, it seems that the person should get credit in precisely the same way—that is, at the spot in the article where the idea appears. [...]]]> An Andy Rooney-esque musing to close out the week: Why do we tend to acknowledge useful feedback from colleagues in a single “thank you” footnote at the beginning of an article, instead of at specific points throughout? The former seems to be the preferred practice, but the latter seems more appropriate in many cases, and I’m not sure why it’s so rare.

My own impulse is to treat colleagues and outside readers just like any other source, and to drop footnotes indicating their specific contributions. If someone gives me an idea that I would have footnoted had it been a published source, it seems that the person should get credit in precisely the same way—that is, at the spot in the article where the idea appears. And while my impressions are admittedly totally unscientific, it seems to me that such footnotes (i.e., “Many thanks to X for bringing this point to my attention.”) are pretty rare.

Maybe the single “thank you” footnote ensures that all the people who contributed to the article will have their names noted by casual readers, who are unlikely to scan any footnotes beyond the first. Or if the purpose of footnotes isn’t so much to give credit as it is to help interested readers pursue their own research, maybe it’s less troubling when a human source goes uncited, since readers are presumably unlikely to follow up with individual people directly. Or perhaps most feedback from colleagues and outside readers is not specific enough to be attributed to any one part of an article.

All of those strike me as plausible explanations, though I’m not sure any of them accurately explains why authors do things the way they do.

Where's the goo?

They are, in short, evidence of the virtues of extreme recycling.

Just imagine the pitch meeting for Galactica:  We’ll take what has to have been one of the dumbest pop-culture packing peanuts ever and make it stronger, faster, better:  How about an allegory about civil liberties and faith after 9/11 using Cylons and vats of [...]]]> I don’t watch much TV.  So, I am hardly the person to make strong claims about its quality or trends.  That said, I find it fascinating that three of the best shows of the past few years—Battlestar Galactica, Madmen, and Glee—share a really odd structural feature:  They have all taken ridiculously bad ideas from cringe-able eras and turned them around completely, made them not only fresh, but evocative, disturbing, intriguing.

Where's the goo?

They are, in short, evidence of the virtues of extreme recycling.

Just imagine the pitch meeting for Galactica:  We’ll take what has to have been one of the dumbest pop-culture packing peanuts ever and make it stronger, faster, better:  How about an allegory about civil liberties and faith after 9/11 using Cylons and vats of goo?

Or what about Madmen:  Let’s explore the most virulent cancers on our culture with lovingly pornographic attention to detail, to demonstrate the complex symbiosis among banality, beauty, evil and exculpation.  Madmen is the money shot of commodity fetishism, proving once again the truth of Chomsky’s admonition that if you want to learn what’s wrong with capitalism, don’t read The Nation, read the Wall Street Journal.

And Glee?  Well, all I can say is:  Don’t Stop Believing.

Which may lead you to this question:  No one really takes the “and everything else” part of CoOps’s desktop mantra seriously, so what the frak does this have to do with law?

Two things.  First, it is a way to understand what’s wrong with the system-salvation provisions of Dodd-Frank.  Second, it describes what (imho) courts will have to do with the likely coming wave of lender liability (and similar) claims falling out from the credit crisis.

Dodd-Frank has already seen more than its fair share of attention, much of it centered on the instability built into the resolution powers given to the executive branch for systemically important (TBTF) firms.  No doubt, these powers might be threatening to capital market participants long accustomed to profound (and in some cases profoundly expensive) government obeisance.  Not only do we now know that the federal government, through the Financial Stability Oversight Council, really has the power to do what it said it couldn’t do (but sort of did anyway with Bear Stearns, AIG, GM, and, depending on your version of the story, Washington Mutual): we also know that the scope and use of these powers is almost entirely unpredictable ex ante.

What is extreme here is the failure to recycle, the failure to learn from history that lasting, effective regulatory restructuring requires years of investigation, analysis and horse-trading.  The Dodd-Frank Congress has tried to do in about a year what it took Roosevelt and his Congresses nearly a decade to do.  We may be faster, but I am not sure that we are that much smarter.  (I note, here, the one important exception to this criticism:  the creation of the Consumer Financial Protection Bureau.  While it was not based on massive, multi-year studies of the sort William O Douglas developed to support securities and bankruptcy reform, it nevertheless was backed by outstanding empirical and normative legal scholarship from two people (Warren and Bar Gill) who—while they may have an axe to grind—understand how properly to hone blades).

A form of extreme legal recycling I think we may see will involve the rebirth of the lender liability lawsuit.  During the 1970s and ‘80s—you know, when we had proto-Galactica and Journey—courts occasionally held lenders liable to borrowers or their creditors for enforcing their rights too aggressively (e.g., foreclosing for mere technical defaults), actions that may have been within the four walls of the contract, but nevertheless lacked “good faith.”

These cases largely collapsed under the convulsive contractarian logic of Frank Easterbrook in Kham & Nate’s No. 2:  Lender liability, Easterbrook told us, is an oxymoron, and courts have no business policing aggressive, but contractually contemplated, collection practices.

This may have made sense in the early 1990s, when lenders were banks trying to collect loans from borrowers whose technical defaults may (or may not) have signaled serious risk of payment default.  Today, I have argued to anyone who will listen, the world is fundamentally different:   We have a Shadow Bankruptcy System, which means, in part, that we have sophisticated, aggressive (largely) unregulated investors (hedge funds, etc) trading in a (largely) unregulated secondary market for distressed debt.  With credit derivatives, equity short sales, and a variety of important gaps in securities, bankruptcy and commercial law, opportunities for opportunistic behavior, I have argued here, appear to be rich and alluring.

Since Dodd-Frank won’t deal with this–Too Small To Matter?–the solution, I have also argued, is another kind of recycling:  build a newer, faster, better form of good faith review of distress investor behavior.  I don’t need to get into the details here.  Suffice to say, if you didn’t like “good faith” in the lender liability cases of the 1970s and 1980s, I’ve got something else you might want to think about.

To paraphrase Faulkner:  The past isn’t prologue—it isn’t even past.

Extremely Recycled Cylon courtesy of Wikimedia

The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. [...]]]> I recently taught Sherwood v. Walker, the famous case involving a Michigan cow named Rose 2nd of Aberlone, as well as a number of other mistake cases in contracts dealing with cows. I’ve got bovine jurisprudence on the mind. It seems that the same is true for Eugene Volokh, who recently noted a case involving a “church owned cow.” The cow in question was owned by the Mormon Church and seems to have negligently collided with a motorcycle. In the interests of extending our jurisprudential understanding of cows, I can’t resist adding another twist to the church-owned cow story.

The Mormon Church’s involvement in agriculture is a legacy of the nineteenth century practice of Mormons paying tithing in kind to the church. As a result of this practice, in the nineteenth century, the church acquired large herds of cattle as well as other food stuffs. It then issued so-called “tithing scrip,” which was in effect private currency. The holder of scrip could redeem it for foodstuffs, including beef, at church storehouses. The scrip then circulated as money, in effect providing liquidity to the perpetually cash starved economies of the Intermountain West in the nineteenth century. Because the currency was in effect backed by cows, however, it was subject to some odd monetary pressures. For example, when a particularly harsh winter killed off a large proportion of the church’s cattle herds, it was forced to reduce the purchasing power of tithing scrip at church storehouses because there simply wasn’t as much beef available as previously. The result was price inflation as the value of the scrip declined.

As part of its efforts to raise revenue during the Civil War, the U.S. government passed a series of banking acts designed to decrease government borrowing costs. All nationally chartered banks were required to hold their reserves in the form of treasury bonds, and non-federally chartered institutions were hit with a heavy tax on the notes that they issued. The effect was to slap a punitive tax on any bank depositor who did not loan his or her savings to the U.S. government. During the 1880s federal prosecutors in Utah decided that the various scrip-issuing bodies of the Mormon church were subject to this tax, and demanded decades of back taxes, eventually killing off the scrip and replacing it with currency issued by federally chartered banks.

Taxes. Regulation. Inflation. Cows. Some things never change.

Openings are vital to a novel and maybe any writing. I was reading an older text, and it reminded me of another beautiful opening from an even older work. I thought I’d share short portions above the fold, to whet your appetite. Larger excerpts are below the fold for those who wish to see the full passages and revel in the glory of great writing. (For fun, you might try and guess the sources).

1st passage: All the world was before me and every day was a holiday, so it did not seem important to which one of the world’s wildernesses I first should wander.

2nd passage: Some years ago – never mind how long precisely – having little [...]]]> Compare and contrast is the name of the game today.

Openings are vital to a novel and maybe any writing. I was reading an older text, and it reminded me of another beautiful opening from an even older work. I thought I’d share short portions above the fold, to whet your appetite. Larger excerpts are below the fold for those who wish to see the full passages and revel in the glory of great writing. (For fun, you might try and guess the sources).

1st passage:
All the world was before me and every day was a holiday, so it did not seem important to which one of the world’s wildernesses I first should wander.

2nd passage:
Some years ago – never mind how long precisely – having little or no money in my purse, and nothing particular to interest me on shore, I thought I would sail about a little and see the watery part of the world.

Here are the larger passages. The authors and titles are listed at the end.

1st passage: (1912)
When I set out on the long excursion that finally led to California I wandered afoot and alone, from Indiana to the Gulf of Mexico, with a plant-press on my back, holding a generally southward course, like the birds when they are going from summer to winter. From the west coast of Florida I crossed the gulf to Cuba, enjoyed the rich tropical flora there for a few months, intending to go thence to the north end of South America, make my way through the woods to the headwaters of the Amazon, and float down that grand river to the ocean. But I was unable to find a ship bound for South America–fortunately perhaps, for I had incredibly little money for so long a trip and had not yet fully recovered from a fever caught in the Florida swamps. Therefore I decided to visit California for a year or two to see its wonderful flora and the famous Yosemite Valley. All the world was before me and every day was a holiday, so it did not seem important to which one of the world’s wildernesses I first should wander.

Arriving by the Panama steamer, I stopped one day in San Francisco and then inquired for the nearest way out of town. “But where do you want to go?” asked the man to whom I had applied for this important information.

“To any place that is wild,” I said. This reply startled him. He seemed to fear I might be crazy and therefore the sooner I was out of town the better, so he directed me to the Oakland ferry.

Source here

2nd Passage (1851):
Call me Ishmael. Some years ago – never mind how long precisely – having little or no money in my purse, and nothing particular to interest me on shore, I thought I would sail about a little and see the watery part of the world. It is a way I have of driving off the spleen, and regulating the circulation. Whenever I find myself growing grim about the mouth; whenever it is a damp, drizzly November in my soul; whenever I find myself involuntarily pausing before coffin warehouses, and bringing up the rear of every funeral I meet; and especially whenever my hypos get such an upper hand of me, that it requires a strong moral principle to prevent me from deliberately stepping into the street, and methodically knocking people’s hats off – then, I account it high time to get to sea as soon as I can. This is my substitute for pistol and ball. With a philosophical flourish Cato throws himself upon his sword; I quietly take to the ship. There is nothing surprising in this. If they but knew it, almost all men in their degree, some time or other, cherish very nearly the same feelings towards the ocean with me.

Source here

By now you probably know the second passage is from Moby Dick. The first passage is from John Muir’s The Yosemite.

1976

Pastime Paradise – Stevie Wonder

1995

Gangstas Paradise – Coolio

1996 By the way, I suggest that anyone wanting a great album acquire Stevie Wonder’s Songs in the Key of Life.

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes [...]]]> By temperament, I am not a particularly passionate person. Every so often, however, the world throws up an event of such mindless horror that even phlegmatic me is roused to ire. Chris Lund points out such a horror in this post over at Prawfs. All I can say is, “What the hell are their Lordships thinking over at the new Supreme Court of the United Kingdom?” Shame! Shame on you!

I write, of course, of the mindless and wicked decision of the Her Majesty’s justices to dispense with both wigs and scarlet and ermine. Rather than sitting in judicial majesty, clothed in the tradition and continuity of the common law, they are going to jumped up in newly designed robes shorn of scarlet and fur. And no wigs. (This BBC report shows the justices in their new robes, which at least have the decency to include healthy dollops of gold braid.) Why don’t they just throw out the concept of precedent, adopt the Code Napoleon, and be done with it. Nor, alas, is the rot confined to the top of the judiciary. Through out the UK, it would seem, judicial horse hair and scarlet are one the wane.

American judges and barristers lost their wigs thanks to the wicked influence of Thomas Jefferson. The hypocrite sage of Monticello, of course, was an awful Francophile at a time when being a Francophile meant defending the guillotine. For him, wigs and scarlet were English (and therefore evil), medieval (and therefore evil), and associated with the common law (and therefore evil). In the new Empire of Liberty that he envisioned for America they had no place. I suspect that his hope was that the common law would be out as well, to be replaced by some hideously rationalized Enlightenment code.

In the wake of the election of 1800, Jeffersonianism was ascendant and any hope for proper judicial and legal regalia in the United States died. Blackstone, Coke, and Marshall proved powerful enough to preserve the common law, even if we lost forever is pageantry. Rather Jefferson and his minions replaced it with a spare classicism — Roman looking court houses, plain “republican” robes, etc. — whose aesthetic cannot help but strike a jarring note against the law that it purports to represent. I suppose that as between losing the common law and losing its trappings, America managed to opt for the lesser of too evils. Still, I can’t help but feel the loss.

Why, in the name of all that is holy, however, should the UK Supreme Court abandon them. I realize, of course, that in an enlightened post-modern age a certain amount of national self-loathing is de rigueur. Penance for the sins of empire and all that. Fair enough. But surely at the judicial apex of the birthplace of the common law, one may take a stand for they symbols of tradition and continuity without embarrassment. The press reports cited by Chris suggest that the motivation for this particular judicial outrage was the need to “modernize” the English law (and given that Scotland enjoys its own legal tradition with its own forms of fancy dress, this is ultimately an English issue). This is a silly justification. There is nothing that prevents a barrister with gown and wig from presenting perfectly cogent and modern arguments about the proper treatment of credit derivatives or bank capitalization regulations. Likewise, there is nothing that keeps a judge clad in scarlet and ermine from protecting the rights of oppressed minorities. Indeed, such decisions and arguments gain power and legitimacy from nesting themselves within a physical pageant that celebrates its connection and continuity with the past. A rapidly changing society that tosses an ultimately costless method of retaining some emotive and symbolic stability, in my opinion, makes a foolish decision.

Shame on the Brits!

Kiko And The Lavender Moon – Los Lobos

As general matter, although I cannot say I know all Los Lobos’s work, I love almost everything I do know. If you like the film, Bull Durham, the song during the fabricated rain out is “I Got Loaded” performed by Los Lobos. You may also want to check out an odd and, to me, [...]]]> One of my best friends gave me the album Kiko by Los Lobos as a college graduation gift. I love the album to this day. The title track, Kiko and the Lavender Moon, is great. It always reminds me of old spooky cartoons from the Bugs Bunny era with the sheet-like ghosts drifting, floating, bobbing down the hall and inexorably coming towards your room. Enjoy.

Kiko And The Lavender Moon – Los Lobos

As general matter, although I cannot say I know all Los Lobos’s work, I love almost everything I do know. If you like the film, Bull Durham, the song during the fabricated rain out is “I Got Loaded” performed by Los Lobos. You may also want to check out an odd and, to me, creepy Sesame Street version of the song, Elmo and the Lavender Moon.