. . . when the reason you feel old today is that you notice that the third series of the Federal Reporter is the high 500s now, and you remember very well when the first few F.3d volumes came out.

The title of my post may surprise you. Surely, you think, there are many irrefutable rules of legal practice. In fact, though there are many rules, but all are secondary to this one, and none so irreducible as this one:

Don't act like an asshole to the law clerks, court clerks, and court reporters.

This is not only a rule of decency, but of prudence and common sense. And yet many lawyers are assholes to these people, because it is in their essential nature to be assholes, particularly to people whom they view as socially inferior or less "important" — which may well be the very pathology that led them to be lawyers in the first place. (The belief that a law clerk, or court clerk, or court reporter is unimportant is one held only by people who don't have a firm grasp of the role they play in the business of the court — and even if they were unimportant, as Dave Barry says, someone who is nice to you but rude to the waiter is not a nice person.)

Usually the consequences are unpleasant, but not grave — lost filings, lack of cooperation in minor ministerial tasks, unflattering "ums" and "uhs" in a transcript. Occasionally, though, lawyers get in real trouble. Case in point: Louisiana lawyer R. Michael Moity Jr., who has been disbarred from practice before the federal courts of the Western District of Louisiana for a year because of a chain of events that began when he acted like a dick in a phone call with a federal magistrate's law clerk and culminated in him misleading the court about his disciplinary record. News flash: when a federal judge's clerk calls and says the judge wants to know why you weren't at a hearing, the proper response is not to yell at the clerk for not reminding you to come to the hearing.

Perhaps reasonable minds can differ on whether Mr. Moity ("Stop saying 'Mr. Moity'! You said my name about five times, I know my name!") should be so harshly disciplined for his lack of professional decorum. But ask yourself this, if you think he should not be interrupted in his federal practice: would you want to be represented by someone who thinks it is a good idea to blow up at a federal judge's law clerk when she calls on instructions from the judge?

Bridget Lee came within metaphorical inches to being convicted of murdering her baby.  A baby that was not, in fact, murdered.  It was stillborn.

Alabama authorities plan to review as many as 100 past forensic cases by a medical examiner whose botched autopsy of a baby led a judge to throw out a murder charge against the mother.

Circuit Judge James Moore on Thursday dismissed the case against Bridget Lee, a 34-year-old church pianist who spent nine months in jail after being charged with her child's death in 2006. An initial autopsy found that the baby was suffocated.

And on that basis Lee, a mentally ill woman who appears to have panicked on giving birth to a dead baby under less than ideal circumstances, was charged with murder.  Lee's decision to hide her stillborn baby, rather than taking it to a hospital or the police, was foolish indeed.

But worse than foolish was the handling of forensic investigation by medical examiner Corinne Stern.  Dr. Stern turned a case of prenatal pneumonia into strangulation and suffocation.

Evidence during the hearing showed six different forensics experts found the baby died of pneumonia caused by an infection and was stillborn. What Stern thought were bruises were actually signs of decomposition.

I don't even play a doctor on tv, but I have enough passing familiarity with the science to venture that, perhaps, the doctor didn't perform a proper autopsy at all.  The judge seems to agree.

The judge said in 30 years of law practice he had never seen an expert make a mistake so bad. He praised District Attorney Chris McCool for listening to a defense expert who raised the first red flags about the flawed autopsy.

"What has happened in this courtroom today is absolutely unprecedented," said [Alabama Circuit Judge James] Moore.

One hopes that Judge Moore is referring to the autopsy, rather than the prosecutor's decision to to re-examine the evidence and drop the charges, but in either case, it was commendable on the part of McCool.

Now, will prosecutors in the other Alabama cases on which Dr. Stern worked be so open-minded, or will they treat them as do their neighbors in Mississippi?

A passion play, conducted entirely on Twitter.

Sad news, as one of the co-creators of D&D (and I mean old school red box D&D) died today. Now, Gary Gygax and Dave Arneson are both gone. Has anybody checked on Erol Otis lately? They always go in threes…

Order of the Stick had a great tribute to Arneson (who is credited with most of the ideas that really made the game roleplaying, chief among them that each figure represented one person.)

I was on BART coming home yesterday and the man sitting next to me was furiously typing away on his laptop. He was composing (and recomposing and re-recomposing) an email and muttering swear words under his breath. He was clearly agitated. It was a strange scene. So, of course, I decided to be a snoop.

He was carefully crafting an angry email to a co-worker about some report or something. He kept editing exactly which angry swear word he wanted to use. It was funny/sad watching him type out FUCK, and then backspace it and add DAMN, and then delete that put DANG.

I immediately placed him as a frustrated middle manager, who had no ability to change anything (and I felt his pain. That was me a few months ago.) But then, he took the bull by the horns. He pulled out his phone, apparently called the person he was writing the email to, and tersely said "I'm sick of this. You can take your report and shove them up your ass" before hanging up.

After he hung up, he let out a large sigh more tension release than anything else I think, and then deleted the draft email. I got off the train wondering if he was going to be fired tomorrow, and noticing how happy he looked. Ah, the small victories of the powerless. I know them well.

We've written previously, in our florid prose, about House Resolution 875, the Food Safety Modernization Act, which proposes to regulate all "food establishments," meaning all commercial agriculture or food production no matter how small-scale, including farmers markets and the roadside tomato stand guy, in the United States.  We are, to put it mildly, concerned that the bill as presently drafted is a touch overbroad.

But we're nobody.  Lately, however, some very heavy hitting bloggers have taken notice of the bill.  In fact, it was noticed by the heaviest there is, the Oprah Winfrey of the blogosphere.

When Oprah talks, people listen, including the bill's sponsor, Rosa DeLauro of Connecticut, the chairwoman of the House Appropriations Subcommittee on Agriculture.  Now that a bit of public attention is being paid to this bill, she's crying foul.  She wants America to know that her good name is besmirched by a shadowy political conspiracy.  No, it's not the communists.

It's the libertarians.

"This notion that we're destroying backyard farms is absurd. It's ludicrous," she says. "I chair the agriculture subcommittee of appropriations. Why would I be putting farmers out of business?"

DeLauro says she has been told that the disinformation campaign "was a libertarian operation somewhere in the country, but we're trying to figure it out."

The "disinformation campaign" DeLauro refers to apparently consists of a close reading of the bill, which (and I've read it closely) does indeed allow a new Food Safety Administration to regulate and impose onerous requirements on all farming or food production in America, if it has any commercial impact whatesoever, and a rumor that DeLauro's husband, Democratic / NPR polling operative Stan Greenberg, works for agrichemical giant Monsanto, which might benefit if something regulatory happened to the smallscale organic farming movement.  The Greenberg rumor got started, apparently, on Greenberg's own webpage.

Greenberg has worked with corporate clients including BP, Boeing, Monsanto, Comverse, and United HealthCare.

Now because DeLauro's husband's site says that Monsanto is a client, that's no reason to assume that DeLauro works for Monsanto as well.  But it does at least indicate that those who've noticed the connection, and questioned it, aren't the barking moonbats making it up out of whole cloth that DeLauro and the Huffington Post would like one to think.

As for the murky libertarian "operation," scheming to bring down DeLauro's name and legislation, well anyone who's ever spent time around actual libertarians knows that they couldn't "operate" a Charley-Horse out of a patient, even if the patient's nose lit up red every time the libertarians made a mistake.  Libertarians organize about as well as oil and water.  Giving DeLauro the benefit of the doubt, if there's a libertarian operation it's a sad one indeed.  Before yesterday, Popehat, which tops a thousand readers on a good day, was one of the biggest blogs to have written on HR 875.

Yet the operation of which we're a cog is still a threat to the congresswoman who, through her control of farm subsidies, may have greater financial control over American agriculture than anyone in the country.

In the meantime, she sent a letter to all of her colleagues explaining what the bill does and is planning a more public campaign to clear the air. She has marshaled organic farming organizations in her defense.

Which probably explains all of the "this is nonsense" blogspam and pingbacks our earlier post has received in the 12 or so hours since Andrew Sullivan mentioned this bill, as well as HuffPo's decision to take notice (from a decidedly pro-regulation, "there's nothing to this" standpoint) of the issue.

But think about it.  How does the Secretary of the House Appropriations Subcommittee for Agriculture marshal support?  Does she write persuasive legal briefs on why "any farm, ranch, orchard, vineyard, aquaculture facility, or confined animal-feeding operation" engaged in "interstate commerce" (which is all commerce as far as the Supreme Court is concerned) doesn't include the guy who sells shuck-your-own corn on Route 66, or the hippies who bring tomatoes to the farmers market on Saturday, or the ten cow dairy from which I buy cheese now and then?  No, because as written, that's precisely what HR 875 does include.

When Congress "marshals support" from those it regulates, it often means threatening tougher regulation.  When Congress "marshals support" from those it subsidizes, it means threatening to cut those subsidies, or promising to increase them.  It's the stick or the carrot.

Of course, the libertarians have neither a stick nor a carrot, but somehow, they've got Rosa DeLauro worried.

The Illuminati work in mysterious ways.

As Ron Coleman points out, the key test to determine whether a trademark infringement claim is valid is whether an offending advertisement creates a "likelihood of confusion" with a prior issued trademark.  That a trademark has some value may be presumed, until the court is required to determine damages, at which time its actual value is determined.

Here's a case where that presumption might not be valid.

Miami-based Burger King Corp. alleges … Steak n Shake’s name for slider-style hamburgers, Steakburger Shots, is “confusingly similar” to trademarked Burger King names. They include BK Burger Shots, BK Breakfast Shots and BK Chicken Shots.

Like any red-blooded American, I enjoy a good hamburger, and find Burger King's hamburgers, if not its french fries, better than those of its fast food competition.  But I find the entire concept of a "slider burger," not to mention "Burger shots," "Chicken shots," or for that matter a "Steakburger shot" uncomfortably, well … digestive in nature.  In fact, I'm unlikely to eat anything described as a "meat shot," no matter how tasty it may look, and assume the same is true for others.  Perhaps Steak 'n' Shake should pursue this promising defense as the litigation unfolds.

At the same time, I am quite aware of the BK Burger Shot, for reasons that have nothing to do with its name or quality as a hamburger:

Expect Steak 'n' Shake to argue that since Burger King cannot trademark cleavage, the claim has no merit.

Texas Republican state Representative Betty Brown is terribly concerned with voting rights. That's why she was closely engaged in a hearing on voter ID law. And when a witness pointed out that some Asian immigrants face voting complications because they have a legal name and then a translated name, Betty Brown had the perfect solution — the REAL AMERICAN solution.

Change your name to something easy for Americans!

“Rather than everyone here having to learn Chinese — I understand it’s a rather difficult language — do you think that it would behoove you and your citizens to adopt a name that we could deal with more readily here?” Brown said.

Brown later told Ko: “Can’t you see that this is something that would make it a lot easier for you and the people who are poll workers if you could adopt a name just for identification purposes that’s easier for Americans to deal with?”

Brown's an out-of-the-box thinker. Now that we're not pre-screening the yearning huddled masses at Ellis Island any more and slapping Anglicized monikers on them, people are slipping through the cracks with all sort of weird-ass handles that make folks of Brown's generation stammer and mumble and say stuff like "How about I just call you Suzy Wong!"

Anyway, all you ching-ching-chong folks, Betty Brown think you oughta change your name to something simple for Americans to read and pronounce. Given our current literacy rate, you ought not set the bar too high. Betty would like to suggest naming yourself after one of the courses in a TV dinner, 'cause most people spend a lot of time eating those and would find it comforting and familiar.

Meanwhile, Betty Brown has inexplicably failed to take her message to the Schuylers and Wojohowitzs of the nation. But I'm sure that's just an oversight.

Maintaining a weblog, even a group weblog, can be more difficult than it appears for those who've not done it.  Work and family should take precedence over what is, for us, an enjoyable hobby that does not offer financial reward.  Ennui and writer's block set in, as I know has happened to me and I suspect has happened to my fellow bloggers from time to time.  One way to combat these problems is to introduce new blood now and then.  That's what I'm here to write about.

Cousin Charles is joining us, effective today, as a guest blogger, because his parents have left the country for an archaeological dig in South America, and are not expected to return for some time.  He joins a long list of past bloggers who've brightened these pages, including Ken's older brother Chuck; Spearchucker, who wrote here about black issues and surgery; and Janice, whom you will recall as the former Popehat yeoman.

In all seriousness I've known Charles, in the online sense, for some time and expect that he will provide a valuable boost to the quality of this site.  It may be a day or two before Charles posts, but he's been given a set of keys to the site effective immediately.  Welcome aboard Charles.

Finally, on the subject of change and financial reward, I'm pleased to announce that Popehat is also about to begin a partnership with the Gator Corporation, which will alert our readers to new products, services, and software through a series of unobtrusive popup ads, which readers are of course free to disregard, though we hope you'll find their products to be of interest.  Remember, always trust content from Gator Corporation.

From an email I just got:

Hello
I came across your website popehat.com, and would like to propose a link exchange between your site and [web-based discount diaper retailer whose actual name I will not mention here].com. Lowest Prices on Diapers and More.

Please consider adding our link to your site on your page: http://www.popehat.com/2009/02/06/national-resources-defense-council-do-as-we-say-not-as-we-sue/

Apparently they wanted to be linked on that single post because it contains the word "diapers". If I link their site, they will link Popehat on their "resources" page "in the proper category." Most of their categories seem to be about baby furnishings. I don't actually see a category for "snark" or "heartless sarcasm" or "poseur ennui," and I'm not entirely sure that babies actually need those things.

Marketing by bot: FAIL.

Wi-fi seems omnipresent and inexorable. It spreads its invisible tentacles like — and with — Starbucks, gradually blanketing the globe with its fell signals, conveying gods-know-what unknowable messages to our hidden cellular structures. But slowly, surely, the valiant forces arrayed against wi-fi have been growing. Uncaring of the conveniences of modern living, defiant in the face of peer pressure, undeterred by the utter lack of serious scientific evidence supporting their case, a motley but proud band of druids, people with tingly thumbs, the chronically mentally ill, and the unemployable-except-in-local-government has gathered to fight wi-fi hegemony. Now they have a new ally — British academics. Possibly having run out of opportunities to boycott Israel, the Association of Teachers and Lecturers is taking stern action:

The Association of Teachers and Lecturers called for classroom wireless networks to be suspended immediately until research has properly considered the threat to health.

Members said they were concerned by scientific reports linking wi-fi with impaired concentration, loss of short-term memory, chromosome damage and increased incidence of cancer.

Exactly what scientific reports are these? Are they peer-edited? Reputable? Well . . .

Colin Kinney, Cookstown High School, in Cookstown, Northern Ireland, who highlighted the issue at the ATL's annual conference, cited international experts who had called for caution when introducing wi-fi technology.

He said research from Sweden had warned about the increased cancer risk and the Government there now funds shielding agents, such as foil covered rooms and anti-radiation point.

Mr Kinney said a Government scientist from Austria had called for wi-fi to be removed from schools claiming there was evidence of 'increased symptoms as well as increased cancer rates'.

Ah, yes, the scientist from Austria. I think he's related to my Canadian girlfriend, who I totally scored with at summer camp. He's related to the other unknown and unspecified experts, too. They all study wi-fi together, and it rocks.

Meanwhile, there is no credible scientific evidence that wi-fi causes harm.

The Health Protection Agency has said that sitting in a wi-fi hotspot for a year results in receiving the same dose of radio waves as making a 20-minute mobile phone call.

The teachers' position is simple: why not just wait until someone proves it is safe?

'Should we force our pupils to use it without long-term safety studies being carried out? I don't believe we should.'

The answer, of course, is that (a) it is virtually impossible to prove that something is safe, (b) the people opposed to wi-fi aren't satisfied with existing scientific studies find no health risk, and there is no reason to supposed they will suddenly become satisfied with further studies, and (c) people asserting that a new technology is harmful ought to carry some sort of burden of proof.

A cynic might wonder whether the Association of Teachers and Lecturers is concerned that wi-fi, with its omnipresent link to the internet, offers students an opportunity to access views, and knowledge, that the Association does not spoon-feed them.

Vegetarians:  The meat-fascists at the Colorado Division of Motor Vehicles will not grant you this license plate:

no matter how proud you are of your vegan lifestyle.

I previously wrote about Harvard Law Professor Charles Nesson, who endeared himself to me by throwing a piece of chalk at me during evidence class, and who recently learned in a rather embarrassing manner that United States District Judges expect him to follow, you know, rules and stuff when he appears pro bono on behalf of RIAA defendants. Crazy Charlie, as Nesson is known with some debatable degree of affection, has a flair for the dramatic. Courtesy of Hit & Run, I see that Nesson is indulging that flair in his defense of RIAA defendant Joel Tenenbaum.

The suit filed by the Recording Industry Association of America has yet to go to trial, but Nesson's recent tactics have drawn criticism, even among the association's most outspoken foes. In the past few weeks, he has tape-recorded a telephone conference with a federal judge and opposing counsel, and then – after US District Judge Nancy Gertner of Boston told him to shut it off – posted the record ing on his blog and featured it in a take-home exam on evidence for his students.

Nesson also posted dissenting e-mails from academics he had hoped to call as expert witnesses for the defense but who rejected his legal theory that Joel Tenenbaum had the right to download songs under the fair use doctrine of copyright law. And he put up a four-minute recording of his wife, Fern, a former Harvard law student of Nesson's, denigrating the experts as misguided naysayers and one of Nesson's law students working on the case as a "schmuck."

I think the thing that always rubbed me the wrong way about Nesson was that he seemed to view teaching — and now, it would seem, litigation — as being performance art: something that had some utility to other people, to be sure, but was primarily a vehicle for Nesson's self-expression. That's rather clear from his view on whether he should consult with his client before posting critical emails from experts:

Nesson reacts with mock horror when asked about posting the e-mail messages on strategy – "Oh, my God, this is our secret stuff!" he exclaimed – and he sounds incredulous when asked whether he had Tenenbaum's permission.

"Did he give permission?" he said. "I represent him. I am him. We are one."

It's unbecomingly unreflective for a blogger to accuse anyone else of narcissism, but . . . .

At any rate, it remains to be seen how Nesson's approach will play out in court. The theatre of the absurd is occasionally effective at illuminating the absurdity of something previously considered to be serious. It's entirely possible that the RIAA litigation strategy is ripe for being shown as ridiculous.

It would be difficult to exaggerate how hard I laughed at this.

Fisherman in the Philippines snared an extremely rare megamouth shark, one of only 40 or so known to be left in the world. Then they ate it.