September 27, 2004
We spent some time in today's Procedure class discussing the pros and cons of appealing as a defendant civil case where you have seemingly lost. On one hand, you force the plaintiff to take a second bite at the same apple. On the other hand, things can go from bad to worse.
Then a few hours later, doing my reading for Torts I came across Posner's opinion in Howard v. Wal-mart (160 F.3d 358), which he calls "a charming miniature of a case." While the textbook quotes the opinion for its discussion of whether "a hair's breadth" is enough, I was interested by the following commentary in the opinion (which is evidence of the joy that comes when a brilliant writer does not outsource writing to his apprentices):
The jury awarded her $18,750. Wal-Mart has appealed out of fear (its lawyer explained to us at argument) of the precedential effect in future slip-and-fall cases of the judge's refusal to grant judgment for Wal-mart as a matter of law. We don't tell people whether to exercise their rights of appeal, but we feel impelled to remind Wal-mart and its lawyer that a district court's decision does not have precedential authority ... let alone a jury verdict or an unreported order by a magistrat judge... refusing on unstated gronds to throw out a jury's verdict.
[The substantive opinion ensues...]
We conclude, therefore, that the jury verdict must stand. And, Wal-Mart, this decision, a reported appellate decision, unlike the decision of the district court, will have precedential authority!
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Lynne Kiesling claims to have found a loophole in the Maryland laws that forbid direct shipment of alcohol to Maryland consumers, namely shipping the alcohol to herself from out of state.
Employing my newly minted LEXIS and statutory-interpretation skills, I tentatively agree. The Maryland code's section on alcoholic beverages seems to hold, so long as Ms. Kiesling pays the relevant tax:
Alcoholic beverages may not be bought, possessed, stored, imported, transported, kept or suffered to be bought, possessed, stored, imported, transported or kept in any vehicle, vessel or aircraft or on any premises or under the charge or control of any person except: (i) by a consumer...
"Consumer" means any natural person 21 years old or older, or any corporation not otherwise interdicted by this article or any other law of this State, who buys, possesses, keeps or transports alcoholic beverages upon which the taxes provided by the tax provisions of Title 5 of the Tax - General Article have been paid, for the person's own use and not for sale.
... (12) "Import" means to transport or ship, or to order or arrange for the transportation or shipment of, alcoholic beverages into this State from any other state, district, territory or country.
But there may be federal regulations or some other body of law I haven't considered. Input is welcome.
Oh, and an unnecessary disclaimer: I'm not a lawyer. This isn't legal advice. Etc.
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I'm about to leave. I'll miss all of you terribly, particularly Will. I had the distinct pleasure of meeting the very dapper Will Baude over a hearty Asian fusion meal. (Being the only Asian at the table, I had no other Asians for purposes of "fusing." This was probably for the best, as our "fused" form would have been too large to exit the restaurant comfortably. That said, we could have fused another Asian's martial prowess with my ancestral Bengali babu penchant for "lamping and liming," thus creating that most elusive, and deadly, of fighting forms: furious fists of sloth.) The light was just right -- it captured the mischievous twinkle in his eye, a twinkle that has been known to give off sparks, setting off unending conflagrations across the Balkans and other benighted corners of the globe. Note to Will: Stay away from the Balkans, and piles of lumber. Please.
A some of you know, I have a blog called Evil Forces. I've been lax in updating it, but I'll be good. Why? Because naming and shaming evil is our best hope of beating evil into a bloody pulp. At some point, it will morph into "Six Rulers," a blog tribute to Big Pun, or "In My Opinionation," a blog tribute to the beautiful Mayim Bialik, co-authored by an unnamed, and indeed unknowable, vortex of dark energy that can only imprecisely be described as a human man. ("Don't know about the future / that's anybody's gueeeesss ...")
Stay human, man, Human Man. The rest of this post is a sweet excerpt from a beautiful essay about time horizons.
In June, Adrian Nicole LeBlanc published an essay in the NYT Magazine, “The Price of Parsimony.” Recently, I was reminded of these contrasting passages:
My anxiety about spending money reared up one day when I was walking down the aisles of a C-Town in the Bronx. I was a few years into the fieldwork for a book I was writing on inner-city poverty, living on less than a quarter of the salary I'd earned at my last proper job. That afternoon, I was trailing my book's main subject, Lolli, as she bought the month's groceries. She was a teenager, pregnant, homeless and already the mother of two children. Her young family subsisted on food stamps and vouchers from the federal subsidy program, WIC. The shield of my judgment rose when she passed right by the C-Town weekly discount flier and made her way down the dirty aisles with her shopping cart. She just grabbed things -- packs of chicken legs and pork chops, bags of sugar and rice, bottles of vegetable oil; in went cans of beans and tins of Spam. I stood, stunned, as she reached for the individual-portion cartons of juice -- with their brightly colored miniature straws -- ignoring the larger, economy-size bottles. No calculation of unit price, no can'ts or shoulds or ought-not-to's, no keen eye to the comparative ounce. By the time her stuffed cart reached the checkout line, my unease was turning into anger. Didn't she know she was poor?
I cared deeply for Lolli and had spent months calculating the intricate effort she put into her daily survival. But money is a repository of unprocessed emotion, a symbol not only of one's relationship to the world but also of one's relationship to oneself.
LeBlanc goes on to describe her family’s very different relationship to money:
I'd grown up in a union family. Being working class -- in Massachusetts, in the 60's, anyway -- meant that it was possible to scrimp and save your way to a measure of economic safety, to imagine a future that included more than trying to survive. My mother's laserlike shopping skills were a source of rueful family humor. On double-coupon day, she could whittle $120 worth of groceries down to $60. The Mecca of college and the need to pay for it provided the justification for leaving many mundane yearnings unmet -- it was why we made popsicles instead of running after the ice cream truck; why we headed straight for the clearance racks; why the friends of shortsighted parents got to splash their way through the summer season in their aboveground pools. And when we were indulged, which was not infrequently, it was always with an eye to the future: savings went to piano lessons and summer camps and even restaurants, so we would feel comfortable in a restaurant world. ''Go explore,'' my mother would say when we went out to eat. Whenever we teased my mom about the vinyl coupon purse she carried, my normally mischievous father would chastise us: it represented hours and hours of worry and caution, tedious labor and her rightful fear for the family's vulnerability. And insofar as college was concerned, my parents' strategy of self-abnegation worked. The hidden cost was the hunger Lolli's actions in the supermarket suddenly wakened in me.
I no longer think envy was the chief emotion at work in me that day in C-Town. It wasn't that Lolli didn't know she was poor; it was that she couldn't see her way to being anything but. Perhaps it was the justness of her disregard for the future that shocked me to the core -- the surrender of tiny, mitigating hopes; perhaps I instinctively realized at that moment that the plodding strategies that had saved me could never do enough good for her. At the same time, Lolli's lack of concern for the very details that had governed my mother's existence had brought home to me the cost of fierce industriousness. I had wanted to believe that my mother's extraordinary investment in her children hadn't consumed her small pleasures, that the denial of her ordinary needs hadn't taken a toll on her.
I'm very sentimental, and this reminded my of (a) C-Town (there was one very close to what had been my train station growing up, Cortelyou Road) and (b) my mother, who was as frugal when grocery-shopping as she was generous with affection, sound advice, and heaping portions of very tasty mildly spicy Bengali cuisine. I love my parents. And I love Crescat Sententia. Thank you, and good night.
Hey dudes, one last thing: Hefner had a really insane run. Now defunct, the band had these really precious songs, a good 85 percent of which were light, occasionally throat-catching meditations on brief infatuations. There was a political dimension to some of the songs, but it was very thin, and avowedly so. One favorite of mine, “The Hymn for the Postal Service,” has the following bit:June the 5th, she moved to Paris / She could not stand the state / of British politics / and I just can’t convince her / that I’m socialist / and every night I pray / for mail in the morning
Sweet Lydia Pond / is doing it for me / and I want to sing / a hymn to the postal service / simple and proud since I stopped sleeping around / I’m so faithful now / to Lydia’s handwriting / that makes me guess the circumstances under which she wrote it / why she used the ‘F’ word when she never ever spoke it?
Admittedly, this is exactly the kind of music that’s turning brains to mush, and that makes “hip people” so weak-willed and loathsome. “The Day That Thatcher Dies” is a dopey little ditty that even an avowed Thatcherite can dig for its brassy verve.
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Like Carina at Inclination to Criticize, I was happy to tear into the latest offering from Lemony Snicket, the Grim Grotto. (Unlike Carina, I read the book alone, slumped in a Greyhound bus and snickering only to myself.)
It's great. One of the best in the series (second, I think, to the previous Slippery Slope). The Lemony Snicket books are probably the best childrens books currently being written (yes, better than the more popular Harry Potter), full of big words, terrible calamities, etc. The Bad Beginning and the Reptile Room (the first two) are perhaps the least good, which may decrease the number of people who make it all the way to the later and more mature delights.
I wouldn't recommend persistently pushing these books on young folk, though. Those who will love them will come to do so on their own, with little encouragement from the authority figures that the book derides.
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Professor Gordon Smith has valuable observations on the process of becoming a law professor here, here and here. Amber Taylor scolds those interested in academia to eschew plagiarism and to write their own work. Tom Bell suggests that white males face a comparatively uphill climb.
Chris Geidner points out that ten years ago, Justice Stevens was "widely anticipated" to retire.
Mark Tushnet, writing at Jack Balkin's blog, offers some observations about the use of academic research assistants.
Article III Groupie goes through the infamous Vanity Fair article and makes highly educated guesses at the names of some of the unnamed Supreme Court clerks.
At the risk of feeling silly, substantive blogging will hopefully resume soon.
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