Article I, Section 2 of the United States Constitution states:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

The oath of office for United States senators reads:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Apparently, Article I, Section 2 violates the oath.

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If you are driving up to a mountain cabin, and a huge snowstorm is expected, you might want to check whether you have the right chains before you get past the snow level.

Fortunately some enterprising young men were making money putting chains on cars. I paid one of them to take me to Running Springs about five miles away to buy the right sized chains. Then Katrina, who has much more talent for snow driving, drove us the rest of the way to Big Bear through the storm.

The drive, which normally takes maybe three hours tops, took more than six. But we got there.

To: Young Defense Attorney

From: Older Lawyer for a Co-Defendant

It was with interest that I read your "Defense Analysis, Liability Report, And Updated Litigation Budget" template report to Casualty Claims Examiner Smith at XYZ Insurance Company.  Rest assured that I have deleted it.  You may also rest assured that the attorney for Plaintiff Jones, who was copied on your email, will likewise delete it after reading it.  I go back with counsel for Jones, and know him to be an honorable man.

When I was your age, we worried that this sort of thing would go out as a paper photocopy.  Fortunately that never happened to me, but I've seen it happen to others.  Isn't email wonderful?

A couple of points:  You described Plaintiff Jones, based on her deposition appearance, in rather disrespectful terms.  While, like you, I am not too impressed with Jones, I would tone that down in future reports.  You never know who might read what you write, and there are more artful ways to describe a witness's appearance than "dirty".  I would suggest "unkempt".  Also, I disagree with your assessment of the value of this case, and the attitudes of jurors in Upscale County, but if your client wishes to pay more to settle this case than does mine, I am not unhappy to hear it.

And while I know that, for the rest of your career, you will carefully examine the attachments on any email before hitting "send," you may console yourself, on this Friday afternoon of embarrassment, with the thought that this isn't much of a case in any event, and that the attorney for Plaintiff Jones has been doing this for a long time.  He could have guessed everything that you wrote, even without seeing the report.

See you at next week's hearing.

Patrick

Our Waste Your Friday Afternoon feature isn't dead.  It's been resting.  Ken lost interest in it.  I went away and started my own blog.  Ezra does whatever he wants to do, and other authors here just work behind the scenes.

Today it returns.  Debate still rages over whether painter Jackson Pollock was a genius, an irresponsible jerk, or both.  There can be no doubt, however, as to Pollock's legacy of inspiring much bad art.  Nor can there be any doubt that he inspired this very clever flash animation game by Miltos Manetas.

The exercise is self-explanatory with a few seconds of playing around.  All I need to explain is that in order to change colors, one should right-click on the screen with one's mouse.

Ronald Reagan was fond of telling the story of a boy who, on being shown a room full of horse dung, rejoiced, crying "There's got to be a pony in here somewhere!"

Alas, not for poor Daniel Bennett, who is threatening suit against the University janitor who carelessly threw away Bennett's  collection of giant lizard crap, perhaps the largest in the world.

"To some people it might have been just a bag of lizard shit," he told Times Higher Education.

"But to me it represented seven years of painstaking work searching the rainforest with a team of reformed poachers to find the faeces of one of the world's largest, rarest and most mysterious lizards.

"Its loss left me reeling and altered the course of my life forever."

But before suing, perhaps Bennett should consider the doctrine of contributory negligence.  After all, had he labeled the unmarked bag in which his treasure was stored, perhaps as "GIANT LIZARD CRAP!", he might feel like the boy in Reagan's story today.

Via Lowering the Bar.

Deputies Jeremy Freeman and Trevor Vander Veen should be in hot water.  Their actions in tasering, arresting, and charging Brian Wiederspohn with assault have gotten their employer, the Whatcom County, Washington Sheriff's Department, socked with a $500,000 judgment for false arrest and malicious prosecution.  But that's no skin off the deputies' noses.  The judgment will be satisfied by taxpayers, and neither deputy has been charged with a crime, lost his job, or even been disciplined.

Despite attempting to frame an innocent man.

Despite tasering an an innocent man.

And despite lying about their actions in court.

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Significant news on the struggle between legitimate scientific inquiry, on the one hand, and lawyer-driven, publicity-fueled, irrational-superstition-dwelling junk science on the other. The U.S. Court of Claims, under the auspices of the National Vaccine Injury Compensation Program, today soundly rejected the proposition that the MMR vaccine causes autism and other dysfunctions. The core of the ruling:

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Meg Whitman, former EBay CEO, is polishing her fiscally conservative creds in her quest for the Republican nomination for California governor, a thankless position currently being botched in spectacular summer-blockbuster fashion by a B-movie actor. Should we conclude that EBay is a fine example of modern free-market commerce? Not exactly. In fact, it turns out that EBay, both now and when run by Whitman, doesn't believe in the free market. They won't let you sell whatever you want! Wired has the pinko-commie-liberal-sympathizer examples, and its commenters have more.

EBay yanked the auction because human trafficking is illegal.

Fascists. It also turns out they won't let you sell socially constructed sexual statuses like virginity, dead bodies, Pluto (the planet) (though they probably wouldn't let you sell Pluto the dog either, as he's disturbingly human), intangible items like souls, Jarts, and Michael Phelps' bong.

What does EBay have against capitalism?

The Bloggess' bit today about worm boom-chikka-wow-wow demonstrates why she is quickly becoming one of my favorite online humor writers.

Tyler Hansbrough and Danny Green, undefeated in four years at Cameron Indoor Stadium.

Duke sucks.

Welcome to the Road to Popehat, the feature in which we throw open the hood and check out the searches that have brought some of you here, and then research buying stock in companies that propose to spray Thorazine from crop-dusters.

Here are a few favorites:

Why am I seeking a new position? I've never really seen us as a motivational site, frankly. I think we're more of a demotivational site.

file bar complaint against deceased attorney Man, clients are just vindictive.

funny asian sounding names Hey, Miley Cyrus learned to use the internet!

criminal statute for halfway house attendant with heart condition Google: legal research for people who don't know what they are asking.

how do you say humiliate in korean: I think it's "pwnd." Let me check.

magic words to make someone be like a slave "Would you like some of this pizza?"

i need financial reports for temporary tattoos Report: you will not get the job.

can i have four motrin pills at the same time? You mean may I have four Motrin pills at the same time. Ask your mother.

original penis beating punishment videos in prison Well, at least he's very specific.

can another blogger sue me for calling him ugly? No, thank God, or we would be in court all day.

your the man now pope hat Thanks!

When I introduced the Golden Asshat, I really didn't think I would be inspired to award the prize again.

The criteria for this award are simple. You must impress us, not as merely an asshat, but as such a superlative and spectacular asshat as to merit the special recognition that can only be given a Golden Asshat.

But David Cohen, editorial cartoonist for the Asheville Citizen Times, a rather good small-medium market paper in western North Carolina, certainly earned his Golden Asshat with this February 9 cartoon.

The award is well-deserved.  If you agree, won't you let Cohen's newspaper know that?

Via Fritinancy, through Twitter.

Edit: 2/12/2009 Dave Russell, who says he works for the Citizen Times, sends this message through comments:

Please note this cartoon did not run in the Asheville Citizen-Times — not in print, not online. I work on the editorial pages of the AC-T and he did not even submit this one to us for consideration. We would not have accepted it for publication.

You may read more of Mr. Russell's message, and my response, in the comments to this post.  Thanks to Mr. Russell for the update.

China, in its never-ending quest to make totalitarianism absolute, efficient, and culturally creepy, has hit on a swell new idea: the SUV! In this case, "V" stands for "Violence" and also "Vivisection." Observe:

The country that executed more than four times as many convicts as the rest of the world combined last year is slowly phasing out public executions by firing squad in favor of lethal injections. Unlike the United States and Singapore, the only two other countries where death is administered by injection, China metes out capital punishment from specially equipped "death vans" that shuttle from town to town.

Makers of the death vans say the vehicles and injections are a civilized alternative to the firing squad, ending the life of the condemned more quickly, clinically and safely. The switch from gunshots to injections is a sign that China "promotes human rights now," says Kang Zhongwen, who designed the Jinguan Automobile death van in which "Devil" Zhang took his final ride.

They've got nice lines, and are easily mass-produced to meet the needs of the People:

They're efficient! They promote federalism!

Makers of death vans say they save money for poor localities that would otherwise have to pay to construct execution facilities in prisons or court buildings. The vans ensure that prisoners sentenced to death can be executed locally, closer to communities where they broke the law.

Their ergonomic design spells comfort!

"I'm most proud of the bed. It's very humane, like an ambulance," Kang says. He points to the power-driven metal stretcher that glides out at an incline. "It's too brutal to haul a person aboard," he says. "This makes it convenient for the criminal and the guards."

It's possible that, at least with respect to the condemned criminals, the translator has missed some nuances of the term "convenient."

They promote green policies like recycling!

China's critics contend that the transition from firing squads to injections in death vans facilitates an illegal trade in prisoners' organs.

Injections leave the whole body intact and require participation of doctors. Organs can "be extracted in a speedier and more effective way than if the prisoner is shot," says Mark Allison, East Asia researcher at Amnesty International in Hong Kong. "We have gathered strong evidence suggesting the involvement of (Chinese) police, courts and hospitals in the organ trade."

This is really a great marketing opportunity. Just as certain Americans were thrilled to purchase ersatz Hummers and pretend they were in the Marines, surely many Chinese would love to purchase scaled-back death vans and pretend that they are on their way to execute their mother-in-law as they drive her to the grocery. It's win-win!

Via.

Just how bad is the Consumer Products Safety Improvement Act, which Patrick has diligently covered here? Well, Walter Olson demonstrates that it has led the Consumer Products Safety Commission to advise thrift shops, secondhand stores, and others to throw out books if they were made before 1985, and if the shops cannot pay for ruinously expensive and impractical testing:

To take just one example, that of resale, thrift and consignment stores, the CPSC guidance advises that such stores discard, or refuse to accept donations of, a very wide range of children’s items unless they are willing to test the items for lead or call their original manufacturer — neither of which steps is consistent with the economics of an ordinary small thrift store. Included in the suspect list are most children’s clothing (because most of it has snaps, buttons, zippers, grommets or other closures with unknown/unproved metal or plastic content), most books that were printed before 1985 or that (even if more recent) include metal or plastic elements such as staples* or spiral binders; most playthings (dolls, balls, trains, toy cars, etc.), most shoes and hair ornaments, most sporting goods, outdoor play items and wagons, board games when including any plastic spinners, tokens or other items, all bicycles and tricycles in kids’ sizes, most decorations for kids’ rooms, nearly everything with metal or synthetic applique, most school, art and science supplies, and on and on.

Over at Defending People, Mark Bennett has some apt commentary. What are the chances of Congress doing anything competent in the wake of this example of its own incompetence? Slim and none.

The title of this post is a line that Manny Real, a United States District Court judge in Los Angeles of some hard-earned infamy, likes to bark at lawyers before him. He'd utter it when a lawyer insisted on arguing a point when he or she had already won the issue. Judge Real was referring, of course, to Satchel Paige's sage advice, "Don't look back. Someone may be gaining on you." This coy reference is intended to tell the lawyer to sit down and shut up and leave well enough alone. Few lawyers catch the reference; most stand there, terrified and gaping, until some merciful soul hisses to them that they've won and to shut up. Judge Real derives visible enjoyment from this process.

In fact, cultivating a sense of when you can submit and sit down is difficult. It fights with our inclination as lawyers to make sure we have made a full record and said everything that can be said. But saying too much can do more harm than good. It can piss off the judge, which is bad in the long term and occasionally ruinous in the short — I admit I have once or twice managed to argue a judge off of a ruling in my favor. And sometimes, arguing when you've won threatens your client with dire consequences.

Case in point, courtesy of Eugene Volokh: a Ninth Circuit decision in United States v. Beltran-Moreno, in which Judge Reinhardt (who has carefully cultivated infamy of an entirely different sort in other quarters) reams out some appellate attorneys for arguing when they should have let well enough alone. Their clients had managed to secure sentences that were more lenient than the law allowed because the district court had misapplied some mandatory-minimum sentences to their benefit. The result was still harsh — they got thirty-five year sentences — but they should have gotten forty-year mandatory minimum sentences, and the sentencing guidelines recommended life sentences on top of that. (All of this, by the way, is the result of extremely harsh federal gun laws — if you get popped with, say, three bank robberies, and the government is able to charge you with carrying a gun in each robbery, you are looking at a mandatory-minimum sentence of fifty-five years on the gun counts before you even get to the bank robberies. That's a lot less than many people convicted of murder serve.)

Despite this windfall, the appellate attorneys doggedly pursued weak appellate arguments that, if successful, could have resulted in the case being remanded to the district court from resentencing, at which time the court could have imposed the higher lawfully mandated sentence. Fortunately for the defendants, the Ninth Circuit affirmed the sentence rather than subjecting them to that risk. If this was the result of the appellate attorneys not understanding the mandatory-minimum and guideline issues in play, it reflects very badly on them, as Judge Reinhardt suggests. However, I think there's another possibility that the Ninth Circuit ignores. To some people looking ahead at a federal sentence, thirty-five years (which translates to at least twenty-eight years of time served, assuming good behavior) might as well be a life sentence. Criminal defendants — who often have difficulty weighing risks, rewards, and probabilities — might conclude that a 1% chance of a lower sentence is worth, say, a 25% risk of a higher sentence. People in those circumstances crave hope. Convincing them that the hope is neither realistic nor rational, and that in twenty-eight years they will be happy to get out and angry if they are kept in because they made the wrong choice, is part of the difficult job of client control. Many of my clients, presented with the same circumstances, would have wanted to roll the dice the same way. Therefore the appellate attorneys' failing may have been one of client control, not of legal analysis.