Long Live U.S. News

Brian Frye has posted a recent essay entitled, "The Gray Lady's Guide to Legal Education." Here's the abstract:

For better or worse, the U.S. News & World Report law school ranking has dominated legal education for decades, by giving prospective law students information about the relative prestige of law schools. But in recent years, it has become largely irrelevant, as prospective law students have begun to look elsewhere when deciding which law school to attend. Apparently, we need a new law school ranking to provide useful information about prestige. This essay provides such a ranking.

Frye briefly summarizes the history of the U.S. News rankings, their trend toward fluctuation, and growing irrelevance. Sophisticated readers will find much to enjoy in this discussion.

Like all good attorneys (and a few law professors), Frye doesn't stop with identifying a problem. He also presents a solution: rank law schools using the "NYT ranking" instead. What does this mean?

The methodology of the NYT ranking is simple, but elegant. I created a list of 196 United States law schools by copying it from the U.S. News & World Report “Best Law Schools” 2024 ranking. I then searched for the official name of each law school in the New York Times archive and recorded how many times the law school had been mentioned by name in the past 12 months. I then ranked all 196 law schools according to the number of times they were mentioned by the New York Times in the last 12 months. The law school with the highest number of mentions was ranked number one, the law schools with no mentions were ranked last, and the rest of the law schools came in between.

Frye goes on to address and dismiss potential objections and concerns with the method--including worries over typos (won't happen / if so, disrespectful), bad publicity (doesn't exist), and regional bias (the NYT is Everyone's Paper). Plus, Frye notes the comparative benefits of the NYT ranking, as it is "much funnier than other law school ranking methodologies." Count me convinced!

But Frye goes even further, comparing his present project to the task of "writ[ing] the New York Times obituary for the U.S. News law school rankings." Frye concludes that U.S. News "must cede the vessel to another"--the New York Times.

Here, I think, Frye goes too far (something he's never done before).

Frye's "Conclusion" section is followed by a further section (which Frye should probably label an "Appendix" if he wants to appeal to the fancier publications), entitled "The New York Times 'Best Law Schools' 2024 Rankings." Here, Frye lays out the New York Times rankings for all to see. 

In doing so, though, Frye reveals that a ranking system is an idea that must ultimately be expressed in some visual form--typically a list. And in laying out the list for readers, one faces the question: how to display those schools that end up tying in the rankings? In the list, one school must still come first, and one must come last. As the overall list corresponds to the ranking system, a physically higher placement among tied entries leads to the appearance of more prestige, even if this prestige is simply illusory. But for readers in a busy world increasingly dominated by images, video, and charts rather than dense text, illusory prestige is the coin of the realm.

As it turns out, ties pervade the NYT rankings. Five schools are tied in 18th place, eight in 24th, 10(?) in 32nd, 17 in 42nd, 44 at 59th, and 94(!) at 103rd. This leaves a lot of schools to list, despite having the same ranking.

And how does the New York Times rankings proceed to list these tied entries? By resorting to the very thing this list was supposed to replace--if not actively destroy: the U.S. News Rankings of each of the tied institutions.

One could have resorted to all manner of alternate ordering mechanisms. Perhaps list tied schools in alphabetical order--resulting in dramatic movement for schools like Ave Maria and Appalachian School of Law. Perhaps use Excel's random-number function to change the ordering each year, giving Microsoft a well-deserved, outsized influence in law schools' prestige appearances. Perhaps one can write the names of law schools onto a set of uniform balls that are deposited in a box and drawn out by lot.

But by listing tied schools in order of their U.S. News rankings, the NYT ranking list perpetuates that which it was meant to replace, as schools with higher U.S. News rankings appear higher--sometimes much higher--on the list than their purportedly equally ranked counterparts. The result is a blow to the appearance of prestige that corresponds to U.S. News rankings, bringing us back to a situation not unlike the status quo. The U.S. News rankings are dead. Long live U.S. News.

To be sure, there are plenty of fixes for those who wish to see U.S. News truly buried. I've listed a few above--though one must not count out the addition of a secondary set of tie-breaking newspaper references to add onto New York Times references. I think the San Antonio Express News is a good choice, as it adds geographic and political diversity to the list.

Choosing the President at Random?

Earlier this month, I became aware via the Legal History Blog that The Amendments Project at Harvard University had released a searchable archive of nearly all amendments that have been proposed to the US Constitution. Jill Lepore and David Woods Kemper are to thank for this incredible undertaking. The archive is available here.

From the announcement:

In total, the Amendments Project has compiled over 20,000 proposed amendments, including 11,000 officially introduced in Congress and 9,000 more put forward through petition. Compiling data from congressional records, the Congressional Petitions Database, and online petitions, the fully searchable database is the most comprehensive archive of attempted constitutional amendments to date. The search feature allows anyone to sort amendments by topic, date, sponsor, party affiliation, and type (e.g., petition, bill, etc.).

Naturally, I decided to poke around in the database to see what odd an interesting proposed amendments I could find. One of my favorites was proposed in a December 17, 1844 bill introduced by Ohio Representative Samuel Finley Vinton. Here's how it starts:

From and after the year one thousand eight hundred and sixty, the people in each State, entitled to vote for members of the House of Representatives of the United States, shall elect from among its citizens a candidate for the presidency of the United States; in which election a majority of all the votes given shall be necessary to a choice. If, upon the first vote in any State, no one person shall have a majority of all the votes given, another vote shall be had, which shall be confined to the two persons having the greatest number of votes at the former voting; and if, upon such second vote, the two persons voted for shall have an equal number of votes, the choice between them shall be determined by lot.

At first glance, this seemed straightforward. But the amendment's requirement that each state must elect "from among its citizens" a presidential candidate means that each state will be voting for a different candidate (assuming that one person cannot be a citizen of multiple states). As a result, each state will end up electing a different person to proceed to the next stage of the election process, where things get even more bizarre: 

The election of candidates in each State shall be certified to the Congress of the United States; and after the certificates of election in all of the States shall have been transmitted to Congress, uniform balls, equal in number to the whole number of members of the Senate and House of Representatives, shall be deposited in a box; and before depositing thereof, the name of each State in the United States shall be inscribed on as many of said balls as shall be equal to the whole number of its members in both branches of Congress. And in the presence of both houses of Congress a ball shall be drawn out by lot, and the candidate elected by the State the name of which is upon the ball drawn out shall be the President. All of the remaining balls having upon them the name of that State shall then be withdrawn from the box; when, from those still remaining, another ball shall be immediately drawn out, in like manner as the first, and the candidate elected by the State the name of which is on that ball shall be the Vice President.

The following paragraph of the proposed amendment goes on to note that Congress shall pass laws governing the specifics of the process. It further states that "[t]he second and fourth sections of the second article of the constitution of the United States, and the twelfth article of the amendment thereto, shall become null and void on the taking effect of this amendment." It is unclear why Sections Two and Four are targeted for nullification, as they concerns the power of the president and process of impeachment--while Section One concerns the manner of presidential elections. Perhaps a secondary goal of the proposed amendment is to negate the powers of the executive.

One can see that the process isn't entirely random. A candidate who wins the vote in more populous states will end up with more balls in the drawing box, increasing the probability of that candidate's eventual selection. But because each state elects one of its own citizens for the eventual drawing, the ultimate drawing remains largely randomized--as even the most populous states will have a small minority of overall balls in the drawing box.

It is unclear what compelled Vinton to introduce such a proposal. His daughter, Madeline Vinton Dahlgren, wrote a glowing appraisal of his life and career in the Ohio History Journal, which briefly mentions the amendment, giving it a bland description of "regulating the mode of election of the President and the Vice President." But there's no other discussion of the proposal beyond this brief point. Still, Vinton had a fairly accomplished legal career, and had previously been elected to Congress for seven terms before returning to the practice of law. He eventually decided to re-enter politics, and introduced the proposal during this second phase of his political career. He was considered for a number of high-level posts, but declined them. Overall, this doesn't give off the impression of a politician who is an erratic weirdo, likely to fire off extreme legislation and proposed amendments.

A possible explanation is that the amendment was meant to highlight problems with the existing system of presidential elections. Abolishing or reforming the electoral college has long been a subject of proposed amendments (as one will soon learn by perusing the database), and this proposal of a random ball drawing may have been meant as a parody of the existing system. The problematic nature of the vice presidential selection process may also reflect dissatisfaction with the office of the vice president in general, as Vinton, a Whig, was enduring the presidency of John Tyler, who became president after William Henry Harrison died after only 31 days in office. Tyler ended up acting at odds with the Whig Party's agenda, leading to his eventual expulsion from the party in 1841. Vinton, a Whig, likely shared his party's dissatisfaction with their former vice presidential candidate (a possibility bolstered by the tone with which Dahlgren discusses Tyler in her article).

This approach of proposing an amendment as a satirical message wasn't unprecedented at the time. Indeed, only five days earlier, another Ohio Representative, Joshua Reed Giddings, had introduced a petition of Ohio citizens seeking an amendment to the Constitution to condition representation in the legislature by reference to "free inhabitants" only--a change that would reduce the political power of southern states with substantial populations of enslaved people. Many similar petitions and proposals were introduced in Congress around this time, but this one included a noteworthy addition, stating that if apportionment based on free inhabitants was "impracticable," then "the animal property of the free States be represented, as well as the slave property of the slave-holding States." A few moments of thought over how to interpret or implement this last provision reveals it to be a nightmare--does it refer to domesticated animals? Animals in general? What sort of animals? Cows? Chickens? Fish? As it turns out, none of this matters. This language does not appear to be a serious proposal to amend the Constitution to give animals political power--rather it's a political statement against the level of political representation enjoyed by states permitting slavery (albeit by means of drawing an unfortunate parallel between enslaved people and livestock).

Whether Vinton's proposed amendment was similarly meant as more of a political statement than a concrete policy proposal remains unclear. I'll continue digging, and may end up writing more on this and other strange amendment in the near future.

In the meantime, I strongly urge you to check out the proposed amendment database! It's fairly easy to navigate, and, as noted in the announcement quoted above, searches can be tailored in many ways, including by year, party, sponsor, and issue. Jill Lepore and David Kemper are owed a great deal of thanks for this accomplishment.

[UPDATE: August 19, 2023: I've added revisions accounting for the requirement that each state must vote for one of its own citizens, which adds a further level of chaos to the process, but solves a previously-flagged problem of the same person winning both the presidency and vice presidency.]

How Many Times Can a Complaint Be Amended?

This post aims to answer a simple question: what is the highest number of amendments to a complaint that has ever been allowed by a court in the United States?

A bit of background first. This post concerns civil litigation, where plaintiffs typically file a complaint setting forth various causes of action against defendants who have allegedly wronged them. These complaints are often amended. Sometimes plaintiffs add or remove parties. Plaintiffs may also add or remove causes of action or factual allegations in support of their causes of action. A defendant may move to dismiss a complaint, and if they succeed, the court may grant the plaintiff leave to file an amended complaint. Granting leave to amend at least once is common--unless a defendant has clearly demonstrated that a plaintiff's case is completely futile, a court will likely give the plaintiff another shot.

While many cases I've litigated have involved amended, second amended, or even fourth amended complaints, I was curious about the maximum number of amendments courts have allowed. A first amended complaint isn't too hard for a plaintiff to get. But when a court is confronted with a complaint that has been drafted and redrafted multiple times, the probability that the court will give a plaintiff yet another chance decreases.

From my exhaustive research (searching for "tenth amended complaint" and increasing the numbers until I could find no further results), it appears that the most amended complaint on record was amended twenty-two times.  The case is Mirarchi v. Boockvar, and it's a recent one--with the original complaint filed on January 12, 2021 in the US District Court for the Eastern District of Pennsylvania (case no. 5:21-CV-00126). A publicly-accessible link to the docket is here.

I've answered the question I set out to investigate, but I dug into the case itself, as I was curious about what would give rise to so many amendments. For those of you brave enough to dive into that nonsense, read on:

Can You Serve Legal Documents Via Pigeon?

It's been a while, but I'm back to answer the important questions. Today's pigeon-themed inquiry is not inspired by any news stories or current events. Instead, it popped into my head and demanded an immediate answer. Those who would like to know the answer, and learn some trivia about pigeons and related laws should read on.

As a bit of background, carrier pigeons (or homing pigeons) are pigeons that have been bred to find their way back to a fixed point even after being transported over long distances. Pigeons may be trained to carry small packages containing messages or other items. Because pigeons can only return to a fixed point, the person sending the message must have a pigeon that will return to the recipient's location. As this New York Times article details, pigeons have been used for sending messages, samples of blood, and other items over long distances, and have been employed in multiple wars to send communications from the field. In the John Wick universe, the Bowery King uses pigeons to send messages and small objects.

Naturally, this prompts the question of whether pigeons may be used to effectuate service of pleadings or documents in litigation. Case law on whether sending a document by pigeon constitutes valid service is limited. From what I could find in a cursory search, no US court has directly addressed a situation where a party has attempted to serve a legal document on someone using a pigeon. A couple courts have considered pigeon-service as a hypothetical scenario, but both appear to disapprove of the practice. 

In Geiling v. Wirt Financial Services, Inc., No. 14-11027; 2014 WL 8473822 (E.D. Mich. Dec. 31. 2014), the plaintiffs took issue with documents that had been produced in discovery that contained the plaintiffs' social security numbers, claiming that the mailing of these documents violated a Michigan state law against transmitting full social security numbers through the mail. The court noted an exception to this rule for documents sent by mail pursuant to legal discovery or process. The plaintiffs argued that this exception should not apply and the court disagreed, noting that the Michigan Court Rules envisioned that parties would produce documents in discovery through first-class mail. The court further suggested that "parties sending documents by untrustworthy means, carrier pigeon for example, could be faulted for operating outside normal discovery bounds," but not parties using standard methods to mail documents. (emphasis added). This suggests that the court would view service by carrier pigeon as a method of service outside of normal discovery practices, but a direct ruling on the issue must wait for another day.

In Seibold v. Commissioner of Dept. of Motor Vehicles, No. HHBCV136019840S; 2014 WL 565905 (Ct. Sup. Ct., Jan. 9, 2014), the court addressed whether a party had properly served an appeal by fax on the Office of the Attorney General, even though the rules required service by certified mail or personal delivery. The party claimed that because the Attorney General had actual notice of the appeal and had not been prejudiced by the failure to make proper service, her case should not be dismissed. The court rejected the plaintiff's argument, noting that at "its logical extreme" the argument would allow "service of the appeal on the agency by any means, including by a carrier pigeon, as long as the agency actually receives the appeal and is not prejudiced." (emphasis added). This, the court concluded, was not supported by statute or case law.

In summary, while courts have not directly addressed a situation where a party has attempted service using a pigeon, the disapproval of the method expressed by the few courts that have contemplated such a scenario means that it is probably is not advisable to do so.

Practically, service by pigeon is unlikely to catch on. The most apparent barrier to wide usage of homing pigeons is the fact that the person sending a document via pigeon must already have a pigeon in their possession that will return to the recipient. This suggests that a network of homing pigeons trained to deliver documents to law firms and courts must be supported by a secondary network of delivery personnel who take the pigeons from the recipients to the senders. Pigeons may be seen as redundant if a system for their physical delivery is already in place.

Another potential criticism of the practice is that even the smallest filing or item of correspondence is too large to be carried by a pigeon. The answer to this, however, is that these documents could be loaded onto tiny flash drives that could, in turn, be deposited into a pack that the pigeon can carry.

States considering permitting service via pigeon may be encouraged to learn that there are already legal barriers in place to prohibit interference with homing pigeons. In Pennsylvania, for instance, it is a summary offense to shoot, maim, or kill a homing pigeon. Similar restrictions exist in Michigan, Virginia, and Wisconsin. Laws like these may assuage concerns that interlopers will interfere with pigeons used for legal service.

Yes, It's Possible for a Dead Person to Win at Trial by Combat

I'm writing a paper on trial by combat in my spare time because these days, what else is there to do? I've written about the subject before, both on this blog and in an article I coauthored with my former law school classmate, Raj Shah. Why I have such an enduring interest in the subject is unclear. Perhaps after days spent working on various civil litigation matters, reading accounts of cases where people physically battle each other to resolve their disputes makes my job seem calm by comparison.

I found one particularly quirky story of trial by combat in the short article, His Body Shall be Brought to the Lists, by W. Croft Dickinson. Dickinson notes that, in cases of trial by battle that involve "a cause touching life and limb," the party responding to the accusation of the crime (the "defender," or in a more modern sense, the "Respondent"), is obliged to appear for the battle within two weeks. If the Respondent dies within that time, his pledges (people who swore that he would appear) would bring his corpse to the area where the battle was to take place (the "lists.") After all, they had sworn an oath that they would ensure that the Respondent would appear and would make sure that their oath was fulfilled, even if the Respondent had died.

Dickinson then describes what happens when a dead body is brought to the lists. From "The Lawe of Armes Within Listis," Dickinson provides the following quoted account--with very little clarification or explanation:

It mycht fal sa that the appellour deis before the day; his borowis, quilk ar bound wndir gret panis, cummis and enteris his ded cors within the barreris to freith thaim of thair borowgang. The defendour, lik as he fand borowis, is enterit within [the] barreris; he findis the provour ded, and he can nocht sla a slane man; and he him self wnpurgit of the crime quhilk that the provour, that thair is deid, put upoun him. Than has he na recover bot to cast this ded cors our the barreris or the day be gane, or ellis the frendis of the ded man] may allege that the luffand man had tynt his actioun and ask him to be justifeit thairfor. Bot it mycht be allegit that [[an] assise war metast than; or ellis a campione for the appellour that is ded to mak gud it that he tuk apon hand, gif the juge and partii will admytt him.

Bot as to that purpose I haf herd that that samyn impediment com anys to preiff and [lege in] the kynrik of spanye, that quhen the ded man wes laid within barreris he wes sa hevy that the liffand man was nocht of mycht to put this ded cors out of [the] barreris, and al the day wes in hand thairwith quhill the son wes gane doun. And than the frendis of the ded man come before the Juge and askit the law of armes, and allegit that the peremptour day wes passit and thair frend had wonnyn his accioun; for he had nothir said the word ne wes not put out of the feld thocht he wes ded. And sua be the law of armes the ded man wan the quyk, and he demanyt as culpable of that actioun; and this wald the law of armes. And sum sais that as this quyk man wald haf castin the ded man our the barreris he fell bakwart on his bak and the ded man on his brest, and cud nocht avoid him of him quhill the day wes passit. And sua be the law he wes jugit in the crime and justifeit hairfore.

To my knowledge, nobody has taken up the task of translating this account from the old Scottish vernacular that was in vogue at the time (around the 1400s). While I am sure there are people better qualified than me to do this, I have a paper to write and I'm not going to wait around for them to get to this, so here is my attempt at a translation:

It might happen that the appellour ["Appellant" -- the party making the accusation of the crime, and responding to a demand for trial by battle] dies before the day; in which case his pledges, who are bound under great pains, come and enter his corpse within the lists [the area where the fight was held], to free them of their responsibility.  The defendour ["Respondent" -- the party accused of the crime, who demands trial by battle], along with his pledges, enters within [the] lists; he finds the Appellant dead, and he cannot slay a slain main; and he himself is unabsolved of the crime which that the appellant; who is there dead, put upon him.  At this point, he has no remedy but to cast the corpse out of the lists before the day is over [before sunset], or else the friends of the dead [man] may allege that the accused man is guilty of his alleged actions and ask him to be adjudicated guilty as a result.  But it might be alleged that that the respondent has met the challenge, as the Appellant's champion is already dead.

But as to that purpose, I have heard that same impediment came to proof in the country of Spain, and when the dead man was laid within the lists he was so heavy that the living man was not strong enough to put his corpse out of [the] lists, and was there all day until the sun went down.  And then the friends of the dead man came before the judge and requested the law of arms, alleging that the day had passed and their friend had won his action; for he had neither said the word ["recreant," or "craven" -- spoken to surrender the battle] nor was he put out of the field though he was dead.  And so, by the law of arms, the dead man defeated the accused, who was found culpable of his alleged conduct; and this was the law of arms.  And some say that as this accused man attempted to cast this dead man over the barriers, he fell backwards on his back, and the dead man was on his breast, and he could not free himself before the day had ended.  And so, by the law, he was judged in the crime and therefore adjudicated guilty.

Some notes on terminology: the "Appellant," is the party making a private accusation of a crime against another party--typically known as an appeal of felony or appeal of murder (in cases where involving allegations of murder).  This is not to be confused with a situation where a party appeals from some lower action (although in some cases, an appeal of felony or murder could follow after a party had been acquitted or pardoned of a crime). And while the term "trial by battle" may be more in line with language used in historic accounts of the practice, I use "trial by combat," as this is the more commonly used phrase today (thanks, Game of Thrones).

My reading of the text differs from the scenario Dickinson discusses at the start of his article.  Dickinson contemplates a situation where a party accused of a crime (the defender, or--in the terminology I chose, the "Respondent") dies before the trial by combat against the accuser, (aka the "Appellant," "appelour," or "provour") takes place. But the text discusses what happens if the Appellant dies before the battle--and the conundrum faced by the accused who finds himself unable to battle against a dead person.  The solution, apparently, is for the living to "put forth" the dead man from the lists, that is, toss him out of the ring--a seemingly simple task.

Not so for the poor fellow described in the story, who tried to throw his opponent's corpse out of the lists, but instead ended up being pinned under the body.  As he was unable to free himself before sunset, he was adjudicated to have lost, as the dead man had not been thrown out of the lists, nor had the dead man verbally signaled that he had surrendered.

As I am writing this, people all over the world are going through tough times. Many of us are stuck inside, some of us have lost our jobs or suffered reductions in pay, and all of us are stressed over the state of the economy and the health of the nation. Perhaps we can all take comfort in the fact that, at the very least, we haven't been found guilty of a crime because we failed to win at trial by combat against a dead person.

(NOTE: Translating old Scottish texts is not my day job, and I welcome any comments on words or phrases I messed up. The last sentence of the first paragraph was unclear, and my version is largely a guess based on context.  I translated "justifeit" as "adjudicated guilty," based on the context in which the term was used, and based on similar usage of the term in other sources.  I translated "borrowgang" as "responsibility," although it appears that this is a technical term that may be more akin to "suretyship."  I could not find a translation for "luffand," which I translated as "accused," based on the context.  The same is true for "wnpurgit," which received a whopping zero results on Google and which I translated as "unabsolved," based partly on the context and based on the similarity of part of the word to "purged.")

Kansas Man Demands Trial By Combat in Iowa Court

From the conversations, texts, emails, and messages of dozens of friends, coworkers, and former classmates (all of whom are dead-on when it comes to pinpointing my legal interests), I learned about this story of a Kansas man who demanded trial by combat in an Iowa divorce case.  The story was first reported a few days ago, but I've been busy.

Those who know me, who have read this blog, or who have read papers that I have co-authored should not be surprised that this case is right up my alley. 

The Des Moines register reports:

A Kansas man has asked an Iowa court to grant his motion for trial by combat so he can meet his ex-wife and her attorney "on the field of battle where (he) will rend their souls from their corporal bodies." 

David Ostrom, 40, of Paola, Kansas, claims in court documents that his ex-wife, Bridgette Ostrom, 38, of Harlan, has "destroyed (him) legally." 

He asked the Iowa District Court in Shelby County to give him 12 weeks "lead time" in order to source or forge katana and wakizashi swords, as first reported by the Carroll Times Herald. 

"To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," Ostrom argues in court records, adding that it was used "as recently as 1818 in British Court."

When reached by phone Monday, Ostrom told the Des Moines Register that he got the idea after learning about a 2016 case in which New York Supreme Court Justice Philip Minardo acknowledged that duels had not been abolished.

The story has been widely reported, but most of the other articles rehash the same points. Kevin Underhill at Lowering the Bar provides good legal coverage here, including a discussion of the relevant case law that Iowa's court would likely cite to reject Ostrom's request.

Here's a report on the story from KCTV5 News. It includes a video of an interview with Ostrom, who claims that "I'm not interested in physically causing harm to anyone." This is something of a shift in tone from the goal of rending souls from "corporal bodies" expressed in his moving papers.

(Ostrom later admitted that his demand contained a spelling error and that he had intended to write "corporeal bodies.")

If you want a copy of Ostrom's papers, or the response filed by his ex-wife's attorney, you're out of luck because none of the news outlets that are reporting and re-reporting this story have deigned them worthy to include for download in their stories. As far as I can tell, they cannot be obtained online. I'm hesitant to ask my firm's messenger service to send a runner to Shelby County, Iowa to obtain a copy of the papers, but I have not ruled the option out.

But back to the case. Unsurprisingly, Ostrom never had much of a chance of success in his motion. Indeed, the judge refused to consider his filing, or the response filed by his ex-wife's attorney in light of both parties' failure to abide by procedural requirements. Just because a form of dispute resolution is not specifically banned does not mean that a party can simply demand it once the case is being litigated in court.

Of course, if two parties are negotiating a dispute resolution provision in a private contract, this might be different. An arbitration by combat provision has been included in at least one contract of which I am aware. This 2016 New York Times article describes the contract behind the ownership of Zuffa, the promotion company that operates UFC:

The two brothers have equal stakes in Zuffa. And while there is no hint of tension between them, a lawyer insisted that their contract needed a dispute-resolution mechanism in case they ever differed over corporate strategy. Lorenzo had an idea: They would fight.

“A sport jujitsu match, three five-minute rounds,” he said. “Dana would be the referee. Whoever won got to vote the other guy’s shares.”

It has never come close to blows, the brothers say. But privately, each says that if combat were required, the other would win. “Frank’s getting ornery in his old age,” Lorenzo said. “Just kidding.”

To my knowledge, no court has litigated whether such a provision would be enforceable.

In the past, Ostrom would have faced the prospect of being barred from public office for engaging in trial by combat, as courts would likely view his proposed sword-fighting approach as a duel. But no longer, as Iowa in 1992 repealed Iowa's constitutional provision that prohibited those who had participated in duels from being eligible to hold public office. Good for them.

The court noted that it would take no action "[u]ntil the proper procedural steps to initiate a court proceeding are followed." For now, it appears that Ostrom's quest to bring swords to the courtroom has failed.

In any event, trial by combat has had yet another moment in the sun. The concept will likely now fade away for another several years until the next go-getter tries, and fails, to resolve a dispute with a legally sanctioned fight to the death. This is the way.

Cutting-Edge Scholarship on State Laws Against Shooting Fish With Guns

One of several reasons why I have not been writing as much here as I used to is that I have been investing my energy in a few other projects. One of them is my forthcoming article, Shooting Fish, which will be published in Volume 12 of the Kentucky Journal of Equine, Agriculture, & Natural Resources Law. Here is the abstract:

This article sets out to answer the question that’s on everyone’s mind: Is it legal to shoot fish with guns? This burning legal query has never had an exhaustive and obsessively-researched answer. Until now. 

In a fifty-state survey of laws that explicitly or incidentally restrict shooting fish, this article finds that every state has laws or regulations that either explicitly or effectively ban shooting fish — with some narrow exceptions. This article simultaneously serves as an invaluable resource to heavily-armed anglers throughout the country, and illuminates a facet of the complex system of legal rules governing fishing in all states. The regrettable lack of academic discussion of shooting fish and state laws on the subject belies the complex legal, environmental, and constitutional implications of these laws. 

This article explores those implications. States’ statutory and regulatory schemes range from explicitly defining fishing methods, to creating long lists of prohibited fishing techniques (think bans on slurp guns, slingbows, fish pews, tree-topping devices, giant powder, and fishberries, to name just a few). Many states employ location- and species-specific laws and regulations — often targeting invasive fish species by permitting wider ranges of methods for taking them. This article also addresses the environmental implications of fish-shooting laws, and why these laws exist. It also notes historic attempts to loosen shooting restrictions — attempts frequently inspired by the proliferation of high-flying, fast-multiplying Asian carp. 

Not to disappoint mainstream enthusiasts of legal scholarship, the article closes with a discussion of the state and federal constitutional implications of fish-shooting restrictions. While bans on shooting fish do not raise significant Second Amendment concerns, certain states’ prohibitions on firearm possession incidental to shooting fish do. This article also acknowledges state constitutional provisions that set forth the right to hunt and fish, but notes that these provisions are unlikely to give rise to successful legal challenges by fish-shooting enthusiasts.

As always, comments on this draft are welcome. Those who are interested in learning of the extensive and creative variety of methods that people have devised for killing and taking fish will find this article particularly helpful.

A 59-Line Breyer Question

Following up on my prior monitoring of the length of Breyer questions, yesterday's oral argument in Lamone v. Benisek prompted the following question/hypothetical from Justice Breyer:

This 59-line Breyer "question," or "Breyer Page" appears to be a new record, as the last record I've been able to locate was a 57-line Breyer Page in Gill v. Texas that Josh Blackman flagged back in 2017. Audio of the argument is not yet available, so I do not know yet if this is the longest Breyer Question ever asked in terms of length of time.

A Lottery Winnings Contract Hypothetical

Due to the overzealous sharing of dubious content, this Facebook Post showed up on my news feed earlier this evening. Here's a photo of the post:

Unless you expand the photo, the writing may be difficult to read. The photo shows several Mega Millions lottery tickets under the following text:

October 22, 2018
Mega Millions Proposition
I Christopher Ferry, herby [sic] agree to equally share 100% of the earnings I win from the Mega Millions drawing on Tuesday, October 23rd, 2018 with all parties that like, share and comment on my Facebook post that states this propostiion [sic]. This is an official legal document that can be used in the court of law. 

It's then signed, presumably by Christopher Ferry. The writing is in all capital letters, so I took the liberty of guessing at the intended capitalization rather than hurt your eyes.

After liking, sharing and commenting on the post (just kidding), I made the foolish mistake of reading the comments. There seem to be many people out there on the Internet who are confused about the basics of contract law. 

To those confused souls, I now say, you're welcome.

A surprising number of very confident commenters on the post noted that the document was not legally binding because it was not notarized. This is nonsense. While notarization may be required for certain documents or agreements, parties can enter into contracts with each other without notarization. Take, for example, oral agreements, or the website terms of service for reading this blog post, which state that by reading this I now own a small, yet noticeable percentage of your soul and that you are required to enter into binding arbitration with me to prove otherwise. This story of a winning lawsuit to claim a portion of lottery winnings as a result of a verbal agreement is yet another example. People can, and do, enter into non-notarized contracts every day. 

A smaller number of commenters speculated that the document may not be legally binding because it had numerous spelling errors. While spelling errors may occasionally be of legal significance (by misidentifying parties or terms, or injecting vagueness into the agreement), the errors here do not appear to have this effect. If spelling errors meant doom for legal documents, than a disturbingly massive percentage of contracts, pleadings, and judicial opinions would be rendered void.

Some other folks point out that the document is not legally binding because there is only one signature on it. A contract, they think, needs to be signed by all parties that are bound by it. This does not appear to be the case here, however, as Ferry's post is an offer that invites acceptance by performance. Ferry indicates that to accept his offer of sharing the earnings he receives, a party need only "like, share and comment on my Facebook post that states this propostiion [sic]." Once a party has done that, that person or entity will have fulfilled their end of the agreement.

On a related note, if Ferry ends up winning, a likely way he will whittle down the number of those who may have a claim against him will be to refuse to compensate anyone who did not completely perform their side of the agreement. Ferry notably requires that parties "like, share and comment" on the post, so anyone who only likes, or only comments would not have fulfilled their end of the bargain. His comments could make this issue a little more interesting, as he states that only those who "LIKE / SHARE / COMMENT" are eligible -- but these comments are parol evidence which some courts may deem inadmissible (particularly since the terms of the contract itself are fairly clear). And even if Ferry's comments are considered, they do not appear to contradict the terms of the agreement.

In short, the offer may give rise to a binding contract, provided that the party claiming to accept the offer has liked, shared, and commented on the post.

Unfortunately for Ferry, if he wins anything in the lottery, he will be required to share those winnings with anyone who fulfilled the requirements that he posted. Whether that is $1.6 billion or $2.00 -- Ferry agreed to share "100% of the earnings" that he would win, rather than limiting his performance only to a situation in which he won the jackpot. At the time of this writing, there are only about 30 minutes to go, but it will be interesting to see if Ferry wins a substantial amount, but less than the jackpot, as this may be enough for certain delightful people on the Internet to seek to recover their $1.32 to which they are entitled.

It's also fun that Ferry states that the document "can be used in the court of law." 

Good luck to Mr. Ferry, and to all others out there who, like me, are excited for their inevitable life of leisure once the winning numbers are announced.

"Don't Be a Lawyer"

I recently read an article by an anonymous author urging readers to avoid becoming attorneys, noting various troubles facing the profession and the difficulties facing those starting out. Here are some of the relevant excerpts:

The competition is terrific. Under prevailing conditions, legal ability is no longer a prerequisite to success. The lawyer without connections is a business-getter, or he rots in his office. Wiles have so boldly supplanted ethics that we have had in recent swift succession a receivership scandal, an ambulance chasing scandal, and a jury-fixing scandal. The integrity of the profession is constantly impugned in the press, and all lawyers are under a cloud. 

It is only the dearth of other employment that keeps the counselors in my town from deserting in droves. Many barely earn their keep, or are assisted by parents, in-laws, or wives. They no longer expect a steady income from law, but live only in hope of a steady job or a political sinecure. Recently a prominent young attorney quit the profession to become a shoe salesman. Others have gone into insurance, bookselling, and storekeeping. One is now the happy proprietor of a fruit stand. 

. . .  

I believe that the harassments which have made the practice of law so dismal today are due principally to overcrowding. My state did not contain a single law school ten years ago; now there are three booming ones. Huge morning, afternoon, and evening classes accommodate everybody. In ten years, the number taking bar examinations has increased by 348 percent.  

. . .  

Hopelessness has sunk deep into my profession, but most pessimistic of all are the newcomers. If I were a young attorney beginning the practice of law in my community today, I should be at my wit's end to earn a dollar, unless I were resolved upon wholesale disregard for ethics. The sharpster has a way of coming out on top nowadays, and survival has come to be most certain for those lawyers who are willing to meet vicious competition with still more vicious practices. It is a condition fraught with serious consequences for the public as well as for the ethical practitioner in law.  

. . .  

Decent youngsters would be better off these days if they raised potatoes instead of practicing law. There is little money in either, but at least from potatoes you derive some satisfaction, and retain your self-respect.

This fairly standard set of indictments against the legal profession is quoted from the straightforwardly-titled article, "Don't Be a Lawyer," which was published in The American Mercury in 1936, and which I found in an April, 1936 edition of Reader's Digest. I'm a bit miffed to be discovering this article now, as I have already become a lawyer, and in the 75 years between the publication of the article and my enrollment in law school, nobody thought to refer me to the author's warnings.

While I have not been able to locate a version of the article online, after a bit of searching, I located this response by William Cain which was published in the Notre Dame Lawyer in November, 1936. Cain criticizes the "pessimistic mental wanderings" of the anonymous author and writes that while many of the facts the author set forth are true, the article focuses on the worst practitioners of the legal profession -- a profession that is primarily composed of "learned, courageous and upright men." (This is not entirely true -- there were learned, courageous and upright women in the legal profession as well, in as early as 1869). Cain points out that the author's selective focus on negative examples could employed to call for readers to avoid the medical profession, business of banking, and institution of marriage.

From Cain's response:

Notwithstanding my anonymous friend's statement that legal ability and real talent are no assurance of success, my own intimate observation and experience of over thirty years active practice at the bar is exactly the reverse. In all that time, I have never known any lawyer with moral courage, ability, integrity and dependability who has failed to enjoy a satisfactory practice yielding amply sufficient pecuniary returns to support himself and family in decency, and to properly educate his children. None of them are, or ever will be, millionaires. None ever wanted to be. Their burning and abiding ambition was to become competent lawyers, and to enjoy the trust and confidence of the communities in which they lived and wrought, and this they achieved. And whatever others may call it, I call it "success."

Things have changed, and I suspect that by now there are some decent lawyers who have managed to surpass that million-dollar mark. But the anonymous article and Cain's response show that present-day arguments about the feasibility of joining the legal profession stretch back farther than one might initially suspect.

The Second Amendment and Legislative "Protection" of Constitutional Rights

This column in yesterday's Des Moines Register by the Editorial Board caught my eye. It begins:

Is state Rep. Chip Baltimore clairvoyant?

The Boone Republican was arrested last week, charged with operating a motor vehicle while intoxicated and possession of a firearm while under the influence of alcohol. Interestingly, less than 10 months ago, he voted to support legislation reducing penalties for toting a gun while drunk. Lucky for him, that bill was signed into law.

According to a police report, Baltimore was stopped by an Ames officer early Friday morning after authorities received reports of a reckless driver traveling northbound on Interstate Highway 35. With his slurred speech and bloodshot eyes, he told the officer he was on his way home after attending meetings in Des Moines, the report said.

. . .  

Last legislative session, Baltimore was among the lawmakers who supported the Iowa Omnibus Gun Law.

Before this law went into effect, carrying a firearm while intoxicated was an aggravated misdemeanor, punishable by up to two years in prison. An OWI conviction provided clear grounds for revocation of a permit to carry a weapon.

The new law, which went into effect July 1, cuts in half potential jail time and allows drunken drivers the ability to keep their permits to carry handguns.

At the time, one Iowa sheriff questioned the change, baffled that state legislators recognized the danger of operating a vehicle while drunk but not carrying a lethal weapon while intoxicated.


“We know alcohol blurs judgment,” said Black Hawk County Sheriff Tony Thompson. “I’m not sure what the driving force was behind watering that down.”

The Register's earlier article reporting Baltimore's arrest is here. Notably, Baltimore was stopped when an officer observed him driving at 55 mph in a 70 mph zone entering a 65 mph zone. For those interested in DUI-related trivia (who isn't?), the National Highway Traffic Safety Administration states that driving at 10 miles or more below the speed limit is an indicator of possible impaired driving. The same is not true of speeding.

 

This story is my quirky introduction for a much broader discussion of misleading rhetoric regarding the "protection" of constitutional rights through legislation. For those only interested in the adventures and apparent foresight of Chip Baltimore (and accompanying DUI trivia), stop reading now!

Star Wars: The Last Jedi: The Review of the Shapiro Review

I watched Star Wars: The Last Jedi when it first opened. While there is a lot to digest, I enjoyed the movie overall. I've been meaning to watch it again, but in the meantime, I have been taking in the odd phenomenon of self-proclaimed Star Wars enthusiasts who often happen to be political conservatives attacking the film. With every negative review I read, the more I like The Last Jedi.

Which is why after all of the presents were unwrapped on Christmas morning, this tweet from Randy Barnett was a nice bonus gift:

@benshapiro expertly enumerates all the flaws of @starwars #TheLastJedi as only a @Harvard_Law nerd. And there are soooo many. https://t.co/vnedm8fiZQ

— Randy Barnett (@RandyEBarnett) December 25, 2017

I don't pay attention to Ben Shapiro because why should anyone? But Randy Barnett is a law professor and noted conservative voice who blogs at the excellent Volokh Conspiracy -- making me all the more sad to see him promoting what turns out to be repetitive, ill-conceived complaining about The Last Jedi.

For those of you who enjoy reading negative reviews of the movie like I do, I recommend reading Shapiro's review first, which you can find here. And because it is Christmas day, the presents have all been opened, and I still have a lot of leftover rage from some family ping pong games, my response to Shapiro's review is below the break. There are many spoilers, so don't read ahead if you want to avoid those.

It should be noted that Randy Barnett is a law professor and Ben Shapiro apparently went to Harvard Law, so that should be enough of a legal hook to let me post it on this law blog.

Thor: Ragnarok Does Not Exemplify Trial By Combat

Over at the ABA Journal, Adam Banner claims that Thor: Ragnarok is the "latest instance of trial by combat in popular culture." He writes (don't worry, no spoilers yet): 

First off, if you haven’t seen the new Thor film, I highly suggest it. It’s one of the best entries in the Marvel Cinematic Universe, and it contains one of the best scenes any fan could ask for: a battle between the God of Thunder and a giant, green rage monster. Without giving too much away, Thor is promised his freedom if he can best his captor’s “champion” in combat—it just so happens that champion is a super-angry Hulk. Trial by combat? Definitely.

I've seen Thor: Ragnarok twice (it's fantastic), and I've written a fair amount about trial by combat (see blog posts here, here, and here and a peer reviewed (!?) article that I coauthored with my former classmate, Raj Shah here). After reflecting on the history, basis, and characteristics of historic (and even Game-of-Thrones-style) trial by combat, the fight between Thor and Hulk in the movie cannot be fairly characterized as an example of trial by combat.

Banner (what a name for a guy writing about a fight that involves the Hulk) decides to write his article without spoilers, which allows him to advance his claim behind a fog of uncertainty that maybe there are other events in the movie that make the fight into a trial by combat scenario. I'll get into the nitty-gritty of the events leading up to the fight in the movie after the break, so I guess there are some minor spoiler alerts for those who didn't watch the trailers and put two and two together.

Bacongate: Did Senator Leahy Read My Confirmation Hearing Outline for Justice Willett?

Business Insider reports on a ridiculous exchange between Senator Patrick Leahy (D-VT), and Fifth Circuit Court of Appeals Judicial Nominee, Texas Supreme Court Justice Don Willett, a video of which is below:



Back when Justice Willet was being considered as a potential Supreme Court nominee, I wrote this post highlighting questions that could be asked at Willett's confirmation hearing based on his prior tweets. From that post, here is one of my potential questions (and the accompanying tweet):

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

In a fascinating display of either: (1) failing to understand simple humor; or (2) extreme partisan interpretation, Leahy lambasted Willet's tweet as an attack on gay marriage and the Supreme Court's decision legalizing gay marriage. From Business Insider:

"I don't think one would see that as praising the Supreme Court decisions," Leahy said of the tweet.

While I am happy that I was able to predict at least one of the tweets that would come up in Willett's confirmation hearing, Leahy taking the tweet in this direction made a farce of his line of questioning. Senators with concerns about Willett taking conservative stances on legal issues certainly have plenty to work with, but this exchange is just (to use some legal terminology) goofy.

All of this aside, I will assume without evidence that Senator Leahy got the idea to ask about that tweet by reading my blog, and I thank the good Senator for his attention to my work.

Plaintiff Asks Court to Declare That Defendant is a "BULLY"

From this tweet by Keith Lee, I learned of this fascinating Complaint filed on Sunday in the New York County Supreme Court. Lee takes note of the first two paragraphs of the Complaint, which are admittedly colorful:

1. The date, September 7, 2017, is a date that shall live in infamy in Staten Island history. On September 7, 2017, the circus came to town. The Defendant, DENNIS W. QUIRK (“QUIRK”) in his individual and personal capacity exploded on the courthouse steps as part rabid-dog and part carnival-barker, in a dangerous, intentional, outrageous, and malicious manner. QUIRK caused serious, substantial, unconscionable, intentional, and malicious harm to the Plaintiff, MICHAEL J. PULIZOTTO (“PULIZOTTO”), in the center of the public square – the steps of the Richmond County Courthouse – all to advance QUIRK’s own personal and political agenda.

2. The date, September 7, 2017, shall always and hereafter be known as “THE DAY OF THE RAT” in Richmond County.

The Complaint goes on to allege that Quirk set up a large inflatable rat outside the parking lot of the courthouse in an effort to ridicule Pulizotto, among many other things. Notably, in Paragraph 2, Pulizotto does not only use "THE DAY OF THE RAT" as shorthand for future reference in the document (as he does with "QUIRK" and "PULIZOTTO"), but dramatically states that September 7, 2017 shall be known as "THE DAY OF THE RAT" in Richmond County. It is unlikely that the Court has the authority to make such a declaration (as such a declaration would likely be within the province of county authorities), but Pulizotto does not seek the labeling of that date in his prayer for relief.

While I found much of the Complaint entertaining, due to its length and excessive hyperbole, I was not able to read the entire thing. But as I skimmed through, these two paragraphs caused me to chuckle:

56. Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

57. QUIRK is a BULLY.

As it turns out, these two paragraphs end up being relevant to Pulizotto's causes of action, specifically, his cause of action for declaratory judgment. For those who need to brush up on their remedies, a declaratory judgment is: "A binding judgment from a court defining the legal relationship between parties and their rights in the matter before the court" which does not provide for enforcement.

What sort of declaratory judgment does Pulizotto seek?

AS AND FOR A SIXTH CAUSE OF ACTION ON BEHALF OF PLAINTIFF(DECLARATORY JUDGMENT)

181. Plaintiff, PULIZOTTO, repeats, realleges, and restates all paragraphs above as if fully set forth herein and further states as follows.

182. As specifically plead above, a bona fide, justiciable, and substantial controversy exists as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

183. The Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic] have adverse legal interests.

184. A judgment would serve a useful purpose in clarifying or settling the legal issues as between the Defendant, QUIRK, and the Plaintiff, PULZOTTO [sic].

185. There is a clear and ascertainable standard for the Court to rule on this issue, to wit: Merriam Webster Dictionary defines “BULLY” as a blustering, browbeating person; especially: one who is habitually cruel, insulting, or threatening to others who are weaker, smaller, or in some way vulnerable.

186. A judgment would finalize the controversy and offer relief from uncertainty as to whether the Defendant, DENNIS W. QUIRK is a “BULLY”.

And in addition to the $25 million in compensatory and punitive damages that Pulizotto seeks in his Prayer for Relief, he also asks for:

G. a declaration that: “DENNIS W. QUIRK IS A BULLY.”;

 

Declaratory judgments may be used to stop litigation "bullies" from sending repetitive demand letters or making meritless threats of litigation, but this is the first instance of which I am aware in which a party has sought to use the remedy to give its name calling the force of law. While Quirk likely does not want to be called a "Bully," the "BULLY" label that Pulizotto seeks is of no legal consequence and bears no apparent relevance to the parties' legal relationship or rights, the Court will almost certainly refuse to grant Pulizotto the requested relief on this cause of action.

 

Pulizotto may well have strong, negative feelings toward Quirk, but incorporating such a petty and futile cause of action into his Complaint will likely do nothing but harm his credibility before the Court in future proceedings. This Complaint and its dramatic language therefore join the vast ranks of pleadings that are amusing, yet awful examples of how litigants should act.

[UPDATE, 10/18/2017]

Another no-no I just noticed in the drafting of the Complaint is that the Plaintiff repeatedly misspells his own name. I have updated the above quotes with [sic]'s so that readers do not accuse me of shoddy copying and pasting.

A 32-Line Justice Breyer 'Question'

Behold!

 

 

From oral argument today in Beckles v. United States. H/T Josh Blackman, who helpfully notes here that Justice Breyer's record is 44 lines.

Revisiting Chemerinsky's "Return of the Jedi" Analogy

A little over a year ago, I wrote a post criticizing Erwin Chemerinsky's characterization of the Roberts Court's liberal October 2014 term as the Return of the Jedi. My criticism was both technical (Chemerinsky suggested that the October 2014 term may be followed by The Empire Strikes Back), and based on a desire for the ideal Star Wars metaphor (I suggested that Star Wars: A New Hope would serve as a better analogy).

While I stand by my technical criticism (Empire came before Jedi, damn it!), Chemerinsky's choice of the Return of the Jedi analogy may have been more fitting than I initially could have known. At the time Chemerinsky wrote his article, I had neither seen The Force Awakens (in which the Empire-themed First Order uses a planet-sized superweapon to destroy entire systems of planets) nor was I aware that Donald Trump would be elected President in 2016, causing unprecedented levels of fretfulness in those who wished to see a liberal Supreme Court.

With Chemerinsky hailing Trump's presidency as the potential end of Roe v. Wade and affirmative action programs, it should be only a matter of days until he brings his analogy home. In the meantime, I would call on any of my readers who attend or are employed at the University of Irvine School of Law to try to locate Chemerinsky's time machine the next time they have the opportunity to visit his office.

Justice Willet: A Confirmation Hearing Outline

Via Howard Bashman's How Appealing, I learned of this excellent profile of Texas Supreme Court Justice Don Willett by Eric Benson. Since Donald Trump included Justice Willett on his short list of potential Supreme Court nominees back in May, there has been a decent amount of coverage from the fairly generic to the critical to the sensational. Benson's article thoroughly covers the story of Justice Willett's life and career before the Texas Supreme Court, some of his notable moments on the Court, and his activities beyond the judiciary, including his speaking at Federalist Society events and living up to his title as the Tweeter Laureate of Texas.

From Benson's article:

Social media sleuths had combed through @JusticeWillett’s feed and found such Trump-mocking gems as “We’ll rebuild the Death Star. It’ll be amazing, believe me. And the rebels will pay for it. —Darth Trump.” Within the day, the websites of outlets from the Dallas Morning News to People exploded with variations of the headline “9 times Texas Supreme Court Justice Don Willett dissed Donald Trump.” While some political commentators thought Willett’s tweets would make his ultimate selection by the thin-skinned Trump unlikely, the president-elect might well favor a judge prone to the occasional insult. But the attention garnered by Willett’s Twitter jabs obscured a more relevant fact: While the justice portrays himself on social media as little more than a flag-waving, pun-inclined good old boy, he is also a heavyweight of constitutional jurisprudence, one of the leading lights of a polarizing legal movement that has upended the long-sacrosanct conservative doctrine of “judicial restraint,” the mantra of Scalia and Robert Bork.

In a series of high-profile opinions over the past half-decade, Willett has mapped out the contours of this position, championing what libertarian attorney Chip Mellor termed “judicial engagement,” a more aggressive approach to reviewing (and sometimes declaring unconstitutional) government regulations, particularly those that relate to economic and property rights.

I began following Justice Willett on Twitter a while ago, and it is a decision I do not regret. Justice Willett's tweets are often humorous and informative. While Justice Willett's tweets are almost all whimsical, he does not hide his enthusiasm for judicial restraint.

I urge readers to read Benson's full article on Justice Willett. As for the remainder of this post...in the event that Justice Willett is indeed selected as a judicial nominee, whether for the Supreme Court or for another federal judgeship, senators will need to think up questions to ask at the confirmation hearing. Clever senators should approach the hearing as any good lawyer approaches questioning a witness at trial: they should ask questions knowing what the answer will be -- or what the answer ought to be.

With this in mind, here is a list of possible questions senators may ask, along with Justice Willett's paper Twitter trail that shows what his answers had better be:

As a Supreme Court Justice (or federal judge) would you be willing to expand the Supreme Court's previous decisions that expanded the definition of marriage?

I could support recognizing a constitutional right to marry bacon. pic.twitter.com/HKPW6tE4H6

— Justice Don Willett (@JusticeWillett) April 30, 2015

As a Supreme Court Justice (or federal judge) will you legislate from the bench?

When it comes to legislating from the bench—I literally can't even.

— Justice Don Willett (@JusticeWillett) September 10, 2014

Do you anticipate that you would ever engage in any form of judicial activism should you be appointed to the Court?

My wife's favorite type of judicial activism. pic.twitter.com/EQcijk5jpW

— Justice Don Willett (@JusticeWillett) November 10, 2016

How will you approach discussions with other justices (or judges) who do not agree with your views on a case?

Text from Court colleague—"I must dissent from your opinion."

Me—"New phone. Who dis?"

pic.twitter.com/4Ai31PrSXD

— Justice Don Willett (@JusticeWillett) November 12, 2016

(Here's a non-tongue-in-cheek question, just for fun): Does your inclusion of "#SCOTUS" in this tweet indicate that you would vote in favor of granting certiorari to this case or to a similar case?

BREAKING—9th Cir. says there's no 2A right for the general public to carry concealed firearms in public. ⚖ #SCOTUShttps://t.co/OoIEcAvvma

— Justice Don Willett (@JusticeWillett) June 9, 2016

What approach will you take toward oral argument?

"That idea is just . . . the worst."

—Vitruvius ("Lego Movie")

Need to work that into oral argument this Term. pic.twitter.com/seE5iTIvO5

— Justice Don Willett (@JusticeWillett) August 11, 2014

What is that on your sleeve?

New cufflinks for a new Term. #SCOTX #txlege pic.twitter.com/CJ25eJ9NsB

— Justice Don Willett (@JusticeWillett) September 1, 2015

To the numerous United States Senators out there who I am sure read this blog on a daily basis: You're welcome.

The Use of Colons in the Titles of Law Review Articles and Comments

I didn't have much to do yesterday evening, so I decided to test a theory that I have believed for years but never examined: that law review articles tend to avoid using colons, while most student-authored notes and comments use colons.

I have both written and reviewed articles for publication and I have read numerous law review articles and comments in the course of writing my own comments and articles. In doing so, I have seen many titles. From my general experience, it seems that the titles of professor and practitioner-written articles tend to avoid the use of colons, while student-authored work continues to embrace that punctuation mark.

With my free evening, I ignored all of the possible activities that the vibrant city of Los Angeles had to offer and set to work to explore the frequency of colon-use in law review titles. My plan was to look at the most recent issue of the top 16 law journals and law reviews I could find (as ranked by Washington & Lee) and to compare the colon vs. no colon ratio in professor/practitioner-authored articles with the colon vs. no colon ratio in the titles of student-authored notes and comments.

The bright idea of determining whether this had ever been done before did not cross my mind until I was well into my project. I did some searching and found this excellent 2006 article in the best law journal written by Joshua Deahl and Bernard Eskandari. Deahl and Eskandari analyze the titles of a volume of law review articles in ten journals every five years from 1948 through 2003. The authors selected five "elite" law journals and five "second-tier" law journals.

Here is Deahl and Eskandari's graph of colon use in law journal titles:

From their summary of findings comparing titular colon use between articles and notes in elite and second-tier journals:

Since we are most interested in the current state of legal scholarship, the trends over the past decade are especially informative. According to our statistics, the four plotted categories rank in the following order, from lowest to highest percentage of colonized titles: (1) articles in elite journals, (2) articles in second-tier journals, (3) notes in elite journals, and (4) notes in second-tier journals. We suspect most people would rank the expected quality of legal scholarship by category in this same order. This lends further support to the idea that the worse the piece of scholarship, the more likely it is to have a titular colon. Only the "elite articles" clearly stand apart in 2003, with approximately thirty to forty percent fewer articles with colonized titles than each of the other categories.

Even though Deahl and Eskandari's methodology is far more rigorous than my spur of the moment project, I decided that a current snapshot of the state of law review titles could serve as a useful comparison and update to Deahl and Eskandari's work (also, I had already written most of the table below and did not want my work to go to waste). I added the "second-tier" journals that Deahl and Eskandary had examined to my sample, although I replaced the Dickinson Law Review (which is no longer being published) with the Penn State Law Review and Denver University Law Review (Dickinson was ranked 112 at the time Deahl and Eskandari published their article, and Penn State and Denver are tied for 111). This gave me a sample size of the most recent issue of 22 journals.

Here are the numbers I found. For professor/practitioner-authored work, I included both articles and essays in my totals. As noted below, I did not include book reviews. Additionally, for the Harvard Law Review, I used the second most recent issue, because the current issue is a Supreme Court 2015 examination and the "In Memoriam:" article, the foreword, and the cases included did not fit cleanly into my article/comment framework. For each publication, I have linked to the page where I found the articles and comments. Take note, however, that some journals only allowed me to link to a "most current issue" page rather than a specific page for a specific issue, so several of these links will be out of date as time goes on.

Build Your Own Lawsuit With A "Lawgo" Set

I only just learned of this (nearly one year old) article at Legal Cheek, but I thought it was worth sharing. Legal Cheek reports:

A Canadian law firm has taken the fun and exciting world of Lego and made it more tedious — by producing a civil litigation version of the hit toy. 

In what appears to be a marketing stunt — or is it a new line of business? — Jensen Shawa Solomon Duguid Hawkes LPP, or JSS Barristers for short, has created a Lego-themed “Litigation Action Pack” called ‘Lawgo’ (pictured above). 

The boutique civil litigation firm, based in the Canadian city of Calgary, has even produced a toy barrister with accompanying robes and a court bench. The figures are recommended for those between 18 and 99 years of age.

A picture of the Lawgo set is available at Legal Cheek's website.

Interestingly, the Lawgo set is recommended for people between 18-99 years old, suggesting that the toy is meant as a gag gift for lawyers or those about to practice law. This is a shame, since it would be nice to see younger children inspired to join a profession that is even more admirable than the Jedi Order.

Legal Cheek hopes that the law firm marketing the Lawgo set obtained permission from Lego, as otherwise the Lawgo set will run into trademark problems, particularly as a result of its logo. On the other hand, even if the firm did not obtain permission, Lego may be too afraid to sue a firm that is so obsessed with the law that they created such a product in the first place. Since I could not locate news of any lawsuits against the firm marketing the Lawgo set in the year since the product was released, I will assume that one of the theories above is true. On the other hand, I could not find any links to purchase Lawgos on the firm's website, so maybe things did not go as smoothly as hoped.

Finally, while I generally approve of products that make the practice of law more approachable or even whimsical, I am also concerned that the Lawgo product could increase negative attitudes towards lawyers. In particular, there are few feelings that are more unpleasant than stepping on a Lego (see, e.g.: this), and I worry that stepping on a similar law-themed object may compound negative feelings toward attorneys. Hopefully, people unfortunate enough to step on a Lawgo will keep their negative feelings confined to the universe of small plastic objects rather than letting their feelings spill over to the legal community.