Blawgletter®

Quote of the Day: Samuel Johnson

Samuel Johnson (1709-1784) thought writing hard.

All censure of a man's self is oblique praise.  It is in order to show how much he can spare.

James Boswell, The Life of Samuel Johnson (1791) (quoting Samuel Johnson in entry for Apr. 14, 1778).

Quote of the Day: David E. Mills

A man and his lawyer stand outside a building that looks like a courthouse:

Client:  What's wrong?  Why aren't we in court anymore?

Lawyer:  I just got Twombleyed in the Iqbals.

David E. Mills, Courtoons, Oct. 23, 2009.

Sad but true.

Quote of the Day: Clarence Thomas

So why do you beat up on people if you already know?  I don't know, because I don't beat up on 'em.  I refuse to participate.  I don't like it, so I don't do it.

Clarence Thomas, Oct. 23, 2009 (explaining to a group of law students at the University of Alabama why he doesn't ask questions during oral argument).

Quote of the Day: Merle Travis (Update)

 
A lump of bituminous coal.

Thomas Hobbes wrote awhile back that, in the state of nature, "the life of man" tends toward the "solitary, poor, nasty, brutish, and short."

Kentuckian Merle Travis translated the Hobbesian view into the brief candle of a bituminous miner.  Travis sang:

You load sixteen tons [of hard coal], what do you get?  Another day older and deeper in debt.  Saint Peter, don't you call me 'cause I can't go.  I owe my soul to the company store.

Merle Travis, "Sixteen Tons" (1946).

Update:  "Tennessee" Ernie Ford made "Sixteen Tons" nationally famous in 1955.  His recording sold 2,000,000 units within two months after its release. 

Our feed still believes that David Hume could out-consume Schopenhauer and Hegel.

Quote of the Day: Patrick E. Higginbotham; "Read This Case" to See Why Jury Trials Vanish

 
Patrick Higginbotham started his service as a federal judge in 1975. 

In Huss v. Gayden, 571 F.3d 442 (5th Cir. 2009), a panel split 2-1 on whether the district court erred in blocking part of a defense expert's testimony in a med mal case.  The trial judge ruled that the expert lacked the knowledge and experience necessary to opine that Terbutaline sulfate, which stops birth contractions, did not weaken Barbara Huss's heart.  The jury awarded Ms. Huss $3.5 million against the prescribing doctor and clinic.  The majority held that the exclusion of the expert's opinion on "specific causation" required a new trial.

Senior Circuit Judge Patrick E. Higginbotham dissented from the panel decision and, this week, from the full court's refusal to reconsider.  He wrote: 

I speak only of the objective message given by the court's handling of this case.  Whatever the impulses of individual judges, about which I am silent, that message is clear.  To leave this opinion on the books unsettles the law of the circuit and delivers a gross injustice.  There is a large policy debate in this country over the wisdom of providing a patient a claim against his doctor for negligence.  Whatever the relative merits of the contending forces, there is an abandonment of judicial roles when judges allow their private view on jury trials and the divisive issues of health care to guide their judicial hand.  The appearance cast by objective recitation of the history of this case is more than judges seeing a case as an opportunity to reach preferred social ends, it is an unwitting loss of place that disserves the judicial duty of disinterest, essential to the integrity of any court.  Ms. Huss had a legal right to pursue her claim and a legal right to a jury trial.  Not only has this court taken that away, it has volunteered suggestions to the district court that he should exclude the testimony of the plaintiffs' experts, this after reversing him for excluding evidence offered by the defendants.

This court has drifted to a seriously flawed view of the role of an en banc court.  That half of the active judges would first refuse to consider the panel ruling that the case was barred by limitation and then years later refuse to consider en banc the panel majority's present ruling exposes the court's new vision.  This is a court of error.  It is not the Supreme Court.  It does not have "discretion" to just "decline to rule."  Unlike the Supremes, it does not have the discretion to decide what it will decide, a powerful tool for implementing social poicy.  This is no lonely view.  It is shared by distinguished scholars.  There can be no offhand dismissal such as -- no great injustice here, the plaintiffs' science is weak, I think.  This leaves litigants at the mercy of panel routette -- the "law" being the unchartered and legally indefensible view of two judges.  There is sad irony in this court's handling of the limitations question.  The same judges prepared to hold that the Husses lost all their rights to sue when they did not file within two years of her diagnosis now, after nine years in federal court, hold that the case should start over, with a large suggestion that the trial judge should not let this case get to a jury again.  Trials of civil cases are disappearing in federal courts.  Litigation is fleeing the courts.  Much is being written about this phenomenon and why it is occurring.  To those students I say:  read this case.

Huss v. Gayden, No. 04-60962, slip op. at 18-19 (5th Cir. Oct. 14, 2009).

Quote of the Day: Elihu Root

 
Elihu Root (1845-1937).

I observe that there are two entirely different theories according to which individual men seek to get on in the world.  One theory leads a man to pull down everybody around him in order to climb up on them to a higher place.  The other leads a man to help everybody around him in order that he may go up with them.

Quote of the Day: Garrison Keillor

We are all in the same boat, you and me and ex-Gov. Palin and Rep. Joe Wilson, and wealth and social status do not prevail against disease and injury. And now we must reform our health insurance system so that it reflects our common humanity. It is not decent that people avoid seeking help for want of insurance. It is not decent that people go broke trying to get well. You know it and I know it. Time to fix it.

Garrison Keillor, "Nice 67 y.o. male has brush with mortality", Salon.com, Sept. 16, 2009 (reflecting on his mild stroke).

Quote of the Day: Scott Adams

Pointy-hair boss:  I don't know how to be a lawyer.

Catbert:  That only matters if you take cases on a contingency basis.

Scott Adams, Dilbert, Sept. 9, 2009.

Quote of the Day: Edward Moore Kennedy

 
Edward M. Kennedy (1932-2009).

For those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.

Edward M. Kennedy, Address to the Democratic National Convention, August 12, 1980.

Quote of the Day: Harvard Law Record

Dear Ms./Mr. My Firm is Too Good For You:

Thank you very much for your recent letter explaining that, despite the fact I am a wonderful person and will likely win the Nobel Prize for Law someday, you were not able to offer me a callback interview and/or a position as a Summer Associate. I regret to inform you that I am unable to accept your refusal to offer me a position as a Summer Associate/callback interview.

This year I have received an unusually large number of rejection letters, making it impossible for me to accept them all. Despite your outstanding experience in rejecting applicants, your refusal does not meet my needs at this time.

Therefore, I shall initiate employment with your firm in May of 2006. Best of luck in rejecting future candidates.

Harvard Law Record, Oct. 13, 2005.