A favorite Zen parable to start off the week

When your mind’s a blank, call it enlightenment! I got nothin’ this morning, so here’s an old fave of mine:

The Zen monks Tanzan and Ekido were walking in the rain. The muddy road was washed out by the rain at one point, where they found a lovely young woman in a silk robe unable to cross the puddle.

“Here you go,” said Tanzan, picking her up in his arms and carrying her safely across the muddy waters.

Ekido said nothing until they reached a temple that evening. Then he burst out, “Monks are supposed to have nothing to do with women! Yet you carried her in your arms. Why did you do that?”

“I left the woman back at that puddle,” said Tanzan. “Are you still carrying her?”

Winning on (intermediate) appeal – oh joy

Victory in the Miss. Court of Appeals, as doubtless in many such courts around the country, is more pleasant than losing, but lacks some of the attributes one perhaps associates with victory. It is a station along the way. The defeated party, having kept things in suspense for the year or two which it took for the appeal to be decided, has little to lose in filing a motion for rehearing (of which the MCOA heard, for instance, 251 in 2012). This will take months to be denied. Further delay may be had by a cert petition to the MSSC, which must be ruled on in 90 days and then decided, if granted, in another 180, i.e. nine more months of delay.

We are reminded of the justly celebrated decision of Board of Inland Revenue v. Haddock:

The human mind is admittedly fallible, and in most professions the possibility of occasional error is admitted and even guarded against. But the legal profession is the only one in which the chances of error are admitted to be so high that an elaborate machinery has been provided for the correction of error–and not a single error, but a succession of errors. In other trades to be wrong is regarded as a matter for regret; in the law alone is it regarded as a matter of course. * * *

The institution of one Court of Appeal may be considered a reasonable precaution; but two suggest panic. To take a fair parallel, our great doctors, I think, would not claim to be more respected or more advanced in their own science than our greatest jurists. But our surprise would be great if, after the removal of our appendix by a distinguished surgeon, we were taken before three other distinguished surgeons, who ordered our appendix to be replaced; and our surprise would give place to stupefaction if we were then referred to a tribunal of seven distinguished surgeons, who directed that our appendix should be extracted again. Yet such operations, or successions of operations, are an everyday experience in the practice of law. * * *

At the end of certain hotly contested cases, decided only by a majority in both the Court of Appeal and the House of Lords, the weary and impoverished litigant, adding up the number of judges who have voted for and against him in the various Courts, has found that, per capita, His Majesty’s judges were equally divided on the point in dispute. It is not surprising, then, if many appellants present themselves to that House in a reckless or at least a speculative mood, as a gambler who has backed a succession of losers still hopes to recover all by a wild wager on the final race. The Court of Appeal, to one in this mood, must represent a minor handicap taking place at 3:30. * * *

As for the present case, we decline to discuss it. It will go to the House of Lords in any event, so let it go at once.

–A.P. Herbert, Uncommon Law

An idle question about the Miss. intermediate-court thingy

In Palermo v. LifeLink Foundation, the Miss. S. Ct. affirms the Miss. Court of Appeals on certiorari review:

Because Section 41-41-1 has never been interpreted by this Court, and because the issue of whether human tissue is subject to products liability law is a “fundamental issue[] of broad public importance requiring determination by the Supreme Court,” we granted certiorari. M.R.A.P. 17(a)(3)(ii).

Might one humbly ponder why these were not equally good reasons for retaining the appeal in the first place, rather than deflecting it to the Court of Appeals? Just thinking out loud here ….

(I’m guessing the answer would be “oops.” Which is a perfectly good answer sometimes. The Court is a busy place.)

Oral argument tip: don’t assume it’s about you

Advocates can be frustrated with a hot panel in appellate oral argument, i.e. one that asks many questions and makes it difficult to hit all your points. But the better lawyers see it the other way: you’re getting a chance to find out what the court thinks of your case, and to change their mind if need be about whether your client should win the appeal.

Much more frustrating, to me at least, is a cold panel, one that asks few if any questions. Why would the court grant oral argument if it didn’t have any questions? Well, if you’re the appellant, the most likely reason is that their questions aren’t for you. They’re for the appellee.

Thus, one question the appellant’s lawyer should have for himself is, am I the reason why we’re here? If you’re facing a stone-cold panel, be prepared to acknowledge that the answer is “no,” and to start condensing your argument (which is already in the briefs, right?) accordingly. Make your best points, invite the Court to ask any questions on subjects you haven’t addressed, and then feel free to sit down 5 or 10 minutes early, if you can do so. The court will appreciate your saving their time, will not be quietly annoyed that you’re droning on about stuff they already know, and may even be impressed by your confidence in the case.

NFL rules on tiebreakers for playoffs

Just a handy link for this time of year. Via Grantland’s article on “the Disaster That Is the NFC South“:

 The tiebreakers eventually swing all the way down to a coin toss, which would be fun. Given this division, the toss would probably be intercepted.

Class prejudice and the bombing of cities

I’ve begun reading Richard Overy’s The Bombing War: Europe 1939-1945 (see here for a good review-post by Robert Farley), and Overy makes a striking point about the general interwar belief that city-bombing would destroy the enemy’s morale:

Trenchard [of the RAF] famously remarked that the moral, or psychological, effect of bombing was twenty times greater than the material effect, though there was little evidence to confirm this beyond occasional but temporary moments of panic during the war in British, French and German cities, and the class prejudices of those who asserted it. [The RAF] assumed that modern war was “a contest of morale,” in which the febrile urban crowd would prove to be “infinitely more susceptible to collapse.” * * *

Europe in the 1920s had

cities filled with migrants from the villages or immigrants from abroad. * * * The new cities were regarded by many social critics (and most of Europe’s conservative elite) as socially amorphous and alienating, with an underdeveloped sense of community and unstable values. They were sites of pre-war and post-war political radicalism and, in the case of Russia, of revolution. The new cities were also popularly associated with a rising tide of crime, vice and genetic defects. These views of urban life reflected profound class and regional prejudices; they surfaced regularly in accounts of future bombing precisely because the rootless urban crowd was expected to be more prone to panic. * * * A British Air Ministry official reflecting in 1937 on what he regarded as the unstable behaviour of “aliens” and “the poorer sections of the community” during the German bombing of London in 1917, concluded that “the capital cities constitute the popular nerve centres where the danger is greatest.”

(Overy at 23-24, 26-27.) It’s not clear that these thinkers regarded the urban masses as any more sophisticated than, say, the desert “tribesmen” whom the British bombed in the 1920s. Overy’s chapter, “Bombing Before 1940: Imagined and Real,” also notes how other contemporary anxieties about modernity expressed themselves in fear of (and plans for) bombing cities into ash.

“This is the kind of argument you make when you have lost an argument”

The Gin & Tacos blog has a fine rant on King v. Burwell:

The latest “legal” challenge essentially based on a typo and a ridiculously overly-literal reading of one sentence in the bill that, if the logic of this argument is followed, implies that only insurance exchanges run by individual states and not by the Federal government can subsidize insurance. This is the kind of argument you make when you have lost an argument. You start measuring the margins and checking the font size to see if some irrelevant minutiae of the code of bureaucratic requirements has been violated. You pull out the dictionary and parse every word according to the most obtuse reading of its literal meaning. You take individual phrases out of context and read them in a vacuum while entirely disregarding the meaning of the text in its entirety.