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Saturday, May 10, 2003
Further evidence of how cosmopolitan, multicultural, and insane my former temporary home of Portland is.

Friday, May 09, 2003
Joyce DeWitt Surfaces!

For those of you who have wondered, as I have, what became of Joyce DeWitt? Here's an article proving that our worst fears are realized: she's out of her freakin' mind.

"Britain Monkey Authors"

That is the chosen URL moniker for this hilarious story, which is a new take on the old theory that if given an infinite amount of time and an infinite number of monkeys with typewriters, those monkeys would eventually duplicate a Shakespeare play. Apparently, putting theory into practice did not turn out quite as planned.

Thursday, May 08, 2003
Conservatives are glimpsing the virtues of privacy in Bennett's case.

The following is from the LA Times by way of How Appealing. I love this article (and the underlying story). I was searching for a good way to out the hypocrisy (and cast a vote for libertarians), here it is:

By Norah Vincent, Norah Vincent is a columnist in Yardley, Pa.

Isn't it curious how quickly a conservative becomes a libertarian when he's caught sinning? There's a lesson in that somewhere, if only the Christian right could bring itself to learn it.

Maybe it will, now that its paragon of virtue, William Bennett, has been exposed as an inveterate high-stakes gambler. They're already piping in with a textbook privacy defense. National Review's Jonah Goldberg carped, "The only conceivable victims here are the Bennett family, and a little bird tells me that they'll do just fine." Bennett himself growled: "I don't play the 'milk money.' I don't put my family at risk."

In other words, I'm not harming anyone, so leave me alone. A fair argument if you're a libertarian, for whom harmless acts are defensibly private. Libertarians believe that the government should stay out of private lives on issues that don't have a bearing on society as a whole.

The problem is that Bennett and Goldberg are not libertarians. They're hellfire conservatives, and hellfire conservatives tend not to believe that a generalized right to privacy exists in the Constitution, much less that harmless acts are protected by it. For far-right conservatives to defend Bennett's gambling in libertarian terms as a "harmless act" — one that doesn't starve the wife and kids — is disingenuous to say the least because it sidesteps the most important criterion by which such a conservative defines harm. That is, of course, sin.

Before the far right can talk about whether something is harmful, it must first establish whether it is sinful because, for these conservatives, all sinful acts are by definition harmful, not just to the sinner or his intimates but to society at large.

This is the justification for upholding sodomy laws. Gay sex, though it may be harmless by libertarian standards, by conservative standards is a sin. Thus, by definition it harms society and the family and should not be a protected private act.

So conservatives shouldn't be arguing that gambling is harmless but rather that gambling isn't a sin. But, arguably, it is a sin, and a deadly one at that. In fact, it's hard to imagine a better example of greed — one of the seven deadly sins — than the world of high-stakes gambling.

Gambling is the very embodiment of greed. Greed is its raison d'être. There can be no doubt where the Christian right stands on the issue. Focus on the Family founder James Dobson has written, "We must reject the fantasy that wagering is innocuous entertainment and deal earnestly with the destruction and pain that it causes to individuals, families and society." And Ralph Reed has pronounced gambling a "cancer on the body politic, destroying families, stealing food from the mouths of children, turning wives into widows."

So if gambling is a sin, harmful to society and the family, then according to conservative logic, whether it is privately undertaken is irrelevant. It should be as illegal as sodomy still is in more than a dozen states. In all fairness, then, shouldn't poker night at Bill Bennett's be just as prosecutable as a quiet tryst at Big Gay Al's? You would think. But, as this incident clearly shows, the far right doesn't see it this way.

They persist in selectively applying their standard of sin to the law, attempting to criminalize only certain sins; other people's sins; sins that push their buttons; sins like sodomy and pot smoking that — as any member of Gamblers Anonymous will tell you — do far, far less damage to society or the family than gambling.

Which is why the lesson in all this is not simply that the Christian right is full of hypocrites who pick and choose which sins to de-privatize and prosecute. It's also — as Bennett has just learned — that the libertarian harm principle is a far more consistent and equitable standard for criminalizing private acts than the selectively enforced Christian "sin principle." Because in a world full of sinners, if you make sinning criminal, sooner or later we'll all end up in the dock.

Wednesday, May 07, 2003

Texas has a strange dichotomy going on over who can do what to asses. These crack-ass searches could be defined as sodomy utilizing one of the various defintions of sodomy!

That said, I wonder - could there ever be "reasonable cause" to stick genitals into a-hole of same sex partner?

What about a "necessity" defense? "But, he told me he would absolutely die if I didn't stick it in him.", or how about invoking some good old "Frustration of Purpose"? "I was only going to have sex with people of the opposite sex, but I'm GAY."

I'm not recognizing Texas as a state anymore because they let their law enforcement finger people on the job!

Sad day, no more IA

Sadly, the blogging universe felt a rift in its collective force when the anonymous (until yesterday), witty, humorous, NY "biglaw" Incompetent Attorney posted his final entry on his blog, Attorneys Suck. I was a loyal reader, sometimes checking his site a half a dozen times or more in a day to see if a new entry had been posted. You will, IA, surely be missed. We at The Academy, for what it's worth, wish you the best of luck tackling the tedious and daunting task of life as a law firm associate. Your positive outlook on life was a boost to all of us similarly situated cogs in the great law firm machines. We all hope to read your unique brand of humor in whatever incarnation you decide to take it. Best of luck,

The Academy.

Tuesday, May 06, 2003
20 Questions For Howard Bashman

Today, May 6, marks the first anniversary of How Appealing. To wish Mr. Bashman a Happy Blawg Birthday, we are posting the following -- our own 20 Questions that Howard was kind enough to take the time (somehow) to answer.

Q1. The first question is the one most asked of you, we’re sure: how do you do it? How do you keep the blawg so incredibly up-to-date and informative? The Academy has a cracker-jack team of contributors, yet cobwebs sometimes grow between our posts. Please don’t give us that crap about, “Oh, I don’t need much sleep.” We’ve heard that one before. But you religiously post all day long. We’re not asleep then either. We’re at work, like you are. Do you have six arms? Are you freakishly able to do many things at once? Or, do you have associates/underlings/hangers-on helping you out by gathering info and posting it? We must know: step by step, how do you post so frequently and so intelligently. Frankly, we could use the advice.

A1. I have tried my best to locate and read interesting new federal appellate court decisions ever since I was invited to join the main law journal in law school. And before I recognized that becoming a lawyer was the most prudent career path for me to pursue, I had intended to pursue a career in journalism. Thus, keeping up with news articles and commentary about legal issues and important cases is almost second nature. Now, instead of having all of that information escape into the deepest recesses of my memory, it remains available online for me and others to access.

I wish there were some secret I could reveal about how to create a popular Web log devoted to appellate litigation. But I’m afraid that most of what it takes is self–evident. If you want to know whether the Sixth Circuit issued any interesting opinions today, go to the Sixth Circuit’s Web site and take a look. If you want to know whether Chuck Lane has an article in today’s edition of The Washington Post, go to the Post’s Web site and look around. Slate, on the other hand, makes it easy on me because it automatically sends an email whenever Dahlia Lithwick’s latest work appears online. (By the way, she was one of my very favorite legal journalists long before she invited me to write an essay that Slate published.)

In large measure, operating “How Appealing” involves doing what I’ve always done – staying up to date with news of interest and recent federal appellate court decisions that are newsworthy or that otherwise catch my eye. In addition, thanks to the amazingly widespread and highly intelligent readership that my blog has developed, I have dozens if not hundreds of additional sources who don’t hesitate to email me when they come across news or court rulings likely to be of interest to me or my blog’s readers. I have received pointers to decisions or news reports from federal and state judges, newspaper reporters, staffers who work in the executive and legislative branches of the federal government and the governments of various states, judicial law clerks, attorneys in private and government practice, law students, college students, and others who are interested in the subjects my blog focuses on.

When I began “How Appealing,” I never expected that my Web log would be receiving on an average weekday between 7,000 and 10,000 page visits. And when I take a look at the hit counter and see that the blog is being accessed repeatedly from the U.S. Supreme Court, from federal and state appellate and trial courts throughout the country, from universities and law firms, from federal, state, and local government offices, and from far and wide internationally, I experience the most pleasant form of disbelief. If the blog were receiving only 30 to 100 visits per day, I doubt that it would resemble what you see today. In other words, my large audience keeps me motivated to make the blog worthy of the attention it receives.

Q2. You describe yourself, or have been described, as an appellate lawyer (we Academy members are too high up in our ivory towers to actually go and do the research necessary to find the exact quote). How sharp do you find the distinction between trial practice and appellate practice? Put another way, do you spend virtually all your time practicing in the Third Circuit and other appeals courts, or do you also work in other areas of litigation practice that, like appellate work, are more focused on questions of law rather than issues of fact?

A2. I spend between 85 to 90 percent of my time doing real live appellate work, and nearly all of the rest of my time working on matters in which an appeal is expected to arise down the road and the goal is to position the case in the best possible light for when that happens. Even if I wasn’t lucky enough to be the author of – to quote an article by’s U.S. Supreme Court correspondent Tony Mauro – “the pre-eminent blog for the appellate court community, the primus inter pares of all legal blogs, the undeniable Marbury v. Madison of the genre,” I’d still view myself as incredibly fortunate because I have the best possible job for me, serving as an appellate lawyer and heading up the appellate section of one of Pennsylvania’s largest and most highly–regarded law firms. Plus, in my spare time, I write a monthly column on appellate litigation for The Legal Intelligencer, Philadelphia’s daily newspaper for lawyers, and I serve as co–chair of the Philadelphia Bar Association’s Appellate Courts Committee. On top of that, I earn a comfortable living while working on some really interesting cases for some wonderful clients.

I view the divide between trial litigation and appellate litigation as significant. I won’t suggest that someone can’t be excellent at both, but many more lawyers are excellent at neither. And a lawyer who believes -- simply because he or she is an excellent trial lawyer -- that he or she will be an excellent appellate lawyer is delusional. To me, an excellent trial lawyer is someone whom I can count on either to win at trial or to preserve all important errors for appellate review. Even the most highly effective appellate attorney cannot emerge victorious if the client’s trial lawyer failed to protect the record for appeal.

What makes for a good appellate lawyer is someone who understands how appellate courts approach cases and who can craft a written argument in even the most complex of cases that is straightforward and compelling. After spending two years clerking for a Third Circuit judge, and after having read thousands of opinions and nearly as many appellate briefs, I think I have a good idea of how best to structure an argument so that it is most likely to accomplish what a client desires. These days, fortunately for me, many clients and trial court practitioners are savvy enough to recognize that an experienced appellate attorney is a valuable addition to the team when a case is heading to appeal.

But don’t just take my word to establish the differences between trial work and appellate litigation. Many judges have spoken of the distinction. Chief among them is Third Circuit Senior Judge Ruggero J. Aldisert in his excellent book, “Winning on Appeal.” Judge Aldisert writes: “Appellate advocacy is specialized work. It draws upon talents and skills which are far different from those utilized in other facets of practicing law. Being a good trial lawyer does not mean that you are also a qualified appellate advocate.” Judge Aldisert has served as a federal appellate judge since 1968, and he is one of the most highly–regarded appellate judges in the Nation. Everything I have observed and experienced in the nearly fifteen years since I graduated from law school confirms the validity of the passage that I’ve quoted from Judge Aldisert’s book.

Q3. As an appellate practitioner, do you practice mostly in state or federal court? Have you noticed any differences in the quality of your opponent’s work in either arena? And here’s a touchy one: how about the quality of the decisions in each?

A3. I practice more frequently before federal appellate courts, and most frequently before the U.S. Court of Appeals for the Third Circuit. But I also practice quite often before the state appellate courts of Pennsylvania. Additionally, I have twice had the pleasure of sitting at counsel table in the U.S. Supreme Court, and I hope one day soon to have the opportunity to argue a case there.

The second part of your question defies easy answer. I hope that the appellate briefs that I file in the state appellate courts of Pennsylvania are of the same high quality as the briefs that I file in the U.S. Court of Appeals for the Third Circuit. Based on my dozen years as an appellate lawyer in private practice and my two–year Third Circuit clerkship that preceded my entry into private practice, I am firmly of the view that the quality of an appellate brief is based on the specific lawyers who have researched and written the brief. So, while it’s nice to have a highly respected law firm handling an appeal, it’s even more important to have very capable appellate lawyers actually doing the work. Thus, it is not the court, but the advocate, that determines the quality of a brief.

Turning last to the quality of decisions, let me begin by defining what I mean by “quality” in this respect. To me, an appellate court’s opinion is of high quality if it reaches the correct result for the right reasons in a manner that is persuasive and well–written. As with appellate advocates, the quality of an appellate decision depends in large measure on the judge who writes it. Although federal appellate court judgeships are viewed as more prestigious -- perhaps owing to the limited number of positions and the existence of life tenure -- it would not be correct to say that federal appellate judges are of uniformly higher quality than state appellate judges. And the same goes for their work product. It is impossible for me to say that federal appellate courts produce a higher quality work product than state appellate courts. Each decision must be judged on its own merit.

Q4. Two of your law partners recently became federal judges. Ever entertained any interest in doing the same? (Note: The Academy does not have the power to make it happen. Yet.) If you do have aspirations in that area, do you worry that the blawg will become an issue?

A4. Buchanan Ingersoll was justifiably proud that two of its shareholders recently joined the federal district court bench in Pittsburgh. And, the year before that, a shareholder from my firm’s Harrisburg office won election to a ten–year term on the Commonwealth Court, one of Pennsylvania’s two intermediate appellate courts. All three of these new judges were highly regarded and very productive attorneys, and my law firm’s loss was the federal and state judiciary’s gain. I have extraordinarily high regard for the fine men and women who agree to serve our Nation as federal and state court judges, often at significant personal and financial sacrifice.

I tremendously enjoyed the two years that I spend clerking for a federal appellate judge (Judge William D. Hutchinson of the U.S. Court of Appeals for the Third Circuit, formerly a Justice on the Supreme Court of Pennsylvania), and if the opportunity ever arose to become an appellate judge -- state or federal -- it would be very difficult to turn that down. At the same time, I’m now 38 years old -- still a bit young to become a judge, at least in my view -- and I really enjoy my work as an appellate lawyer in private practice.

I have been incredibly fortunate to work on some fascinating cases in my twelve years in private practice, both for paying and pro bono clients, and to achieve a good number of victories in cases of importance. Thanks to the Web log, I have gotten to know some of the lawyers who work for the Bush Administration in selecting and seeking the confirmation of judicial nominees, and I have gotten to know (or know better than before) lawyers working at the Senate Judiciary Committee for Senators on both sides of the aisle. Also, I understand that “How Appealing” is quite popular among current federal judicial nominees, and I’m reliably advised that a newly confirmed (and very highly regarded) federal appellate court judge recently told someone he accepted for a clerkship that the clerk–to–be should read “How Appealing” regularly in preparation for the clerkship. That was high praise indeed.

I have previously joked that “How Appealing” doesn’t count as a paper trail unless you print out the blog’s contents (which I’m told is exactly what the Ninth Circuit’s library does for some of the judges on that court; of course, the blog’s links don’t work as well on paper as they do electronically). But, in all seriousness, I try to keep the blog interesting but non–controversial. And while I’m a registered Republican who believes in judicial restraint, I strive not to allow my political views to influence what I post at my blog. Moreover, my strong support for the confirmation of highly qualified judicial nominees is non–partisan -- I’d continue to be pro–confirmation even if a Democratic President were nominating highly qualified liberal candidates for the judiciary. Although my Web log may demonstrate that I have a mind capable of grappling with complicated subjects, a sense of humor, a good memory for obscure details, a love of the cinema, and wide–ranging knowledge of the law and appellate advocacy, whether these qualities make me a good candidate for public service someday is something for others to decide. The large and devoted readership that my Web log now has among federal and state judges and law clerks, law professors and students, attorneys, journalists, and hordes of interested others here in the United States and elsewhere far exceeds the expectations that I had when I began the blog. If in the future anything else positive comes from having had a Web log, that will just be icing on the cake.

Q5. If the Ninth Circuit were to sponsor a professional sporting event, which one would it be? (Partial sponsorship is OK, such as the "Verizon Call to the Bullpen" or the Triple Crown's "Polaroid Photo Finish.") Would you buy a ticket to that event, watch it on TV, or just listen to the streaming audio?

A5. I think that the Ninth Circuit should co–sponsor the Grand Prix of Long Beach. I’m reminded of Judge Alex Kozinski’s recent dissenting opinion in which he feared (see footnote two) that Judge Stephen Reinhardt might try to wrongfully procure ownership of Judge Kozinski’s Lamborghini. Now even if that Lamborghini is merely fictional, an auto racing sponsorship is still appropriate, because sometimes that sport produces spectacular wrecks, which approximate what happens to some Ninth Circuit rulings on review by the U.S. Supreme Court. But, as with wrecks in auto racing, such reversals happen infrequently and yet attract a disproportionate amount of attention.

Q6. Do you get more pleasure from writing your monthly column (in which you state a position) or from blawgging (in which you generally remain neutral)? Do you feel any pressure to take the blawg in different directions -- e.g. taking more of a position in your commentary, moving left or right, etc.?

A6. I started the Web log as an adjunct to the monthly column, and I think that the blog had immediate credibility because I am the appellate columnist for a well–respected legal journal. Also, the blog has opened up a much larger audience for my column. Many hundreds of readers of my blog have signed–up to receive my monthly column via email on the day of its publication each month, including federal appellate judges, journalists from major news outlets, law professors, and law students. The Information Technology people at my law firm tell me that my monthly column's archive hosted at the law firm’s Web site is one of the most–visited pages on the law firm’s entire Web site, and that’s an accomplishment at a law firm that consists of more than 350 lawyers.

All that being said, I think that I enjoy the Web log more for several reasons. My Web log is a truly interactive experience. I receive many, many emails each day from readers who are sending along ideas or responding to posts. And although maintaining the blog may take much more time each month than writing my appellate column, each blog post takes much less time than each monthly column. So, on a per–item basis, blogging is much easier. Finally, the “20 questions for the appellate judge” feature of the blog is for me a labor of love, and I continue to be impressed with the incredibly high caliber of the judges who have agreed to participate.

On the issue of interjecting my personal views, I’m proud to have a blog that attracts readers from across the political spectrum. I try to link comprehensively to news and commentary concerning the judicial confirmation process, but on any given day it is possible that one point of view will predominate in what is newly available online. The one area in which I consciously allow my opinion to invade is in matters involving sound judicial administration. So, yes, I prefer the abolition of opinions designated at their issuance as non–precedential, and I’d prefer that recused judges not be counted as voting against rehearing en banc in all federal appellate courts, even though only some currently share that view. But what I aim for is to keep the blog interesting and, on occasion, humorous. I don’t envision any change in the quite limited extent to which my blog expresses my personal views. Personal views are a dime–a–dozen, but selecting judicial opinions of note from the undifferentiated mass of opinions issued each weekday takes real talent.

Q7. Which Supreme Court justice do you think would be the best kisser? (The Academy guesses Scalia. Grrrrowr!)

A7. I’m going to stay on that same elephant and pick Justice Ruth Bader Ginsburg. Yet I doubt that any of the currently serving Justices was nominated or confirmed based on kissing ability. If I’m wrong, I’m sure I’ll start hearing about it in the emails that I receive from the readers of my blog.

Q8. How has the Third Circuit changed since you clerked?

A8. The Third Circuit has always had a reputation as a moderate court -- not as liberal as the Ninth Circuit but not as conservative as the Fourth or Fifth Circuits. I’d say that the Third Circuit was, compared to today, slightly more politically conservative when I clerked there, and the judge for whom I clerked was either the, or one of the, most conservative judges on that Court. Since the time of my clerkship, President Clinton appointed five judges who continue to serve on the Third Circuit, and of those five I’d say that only two qualify as dependably liberal, while the other three are moderate. Of course, a good percentage of the Republican nominees to the Third Circuit tend toward the moderate as well. But all of the judges on the court are very smart, very hard working, and very interested in reaching the correct result, regardless of what their own personal or political preferences might be. The Third Circuit has also been most fortunate to have had as its Chief Judge over the past five years one of the most brilliant and effective individuals I know, Chief Judge Edward R. Becker. He took senior status on Sunday, May 4, 2003, and his distinguished tenure as Chief Judge merits all of the praise it has been and will be receiving.

Q9. As a Third Circuit practitioner, what do you think about the prospect of Judge Alito as a Supreme Court justice?

A9. On a personal level, I find Judge Samuel A. Alito, Jr. to be quite charming. And I will be forever in his debt for the courtesy he showed in traveling in to Philadelphia from Newark, New Jersey last year to speak to the Appellate Courts Committee of the Philadelphia Bar Association, a committee that I co–chair. As a jurist, Judge Alito is exceptionally smart, and I don’t sense from his opinions that he is actively campaigning for a promotion. I have no doubt that he would make an excellent U.S. Supreme Court Justice. But if that doesn’t happen, he is in line to be Chief Judge of the Third Circuit in due course. Few people outside of the judiciary may know this, but in addition to his work as a Judge on the Third Circuit, Judge Alito also chairs the federal court committee that is in charge of proposing and considering amendments to the Federal Rules of Appellate Procedure (see page five of this PDF document). The Chief Justice of the United States decides whom to appoint to that post, so this is further evidence of the high regard in which Judge Alito’s abilities are held.

Q10. Let's say a genie appeared before you and offered you an all-expense paid vacation with your wife and child anywhere in the world on the one condition that you forego the internet for 2 weeks . . . would you accept the offer? Where would you go?

A10. We accept! My wife, son, and I would like nothing more than to take a vacation right now. We’d all be very interested in a trip to Africa to go on safari, to Australia, to Hawaii, or to Alaska. And if it were necessary for me to stay in the Third Circuit, we’d more than happily settle for a week or two on St. John, USVI (and this place in particular is especially nice).

Q11. Who are your top five favorite current judges on the federal courts of appeal and why?

A11. The thing that makes a federal appellate judge a favorite of mine is the authorship of opinions that I enjoy reading. So, if I were marooned on a desert island and could only read the decisions of five federal appellate judges, which five judges would I choose?

Richard A. Posner, Frank H. Easterbrook, and Stephen Reinhardt would definitely be on my list. In contention for the remaining two slots would be Terence T. Evans, Bruce M. Selya, Jerry E. Smith, Alex Kozinski, Diarmuid F. O’Scannlain, and Michael W. McConnell (from whom I’m expecting great things).

Q12. Since starting the blawg, what is the longest period of time you have gone without posting? How did that make you feel? Did you get a rash? Do you ever get sick of attending to the blawg?

A12. I think the longest “How Appealing” has gone without being updated was approximately a week at the end of August 2002 when I was on vacation. Blogging is fun, but many other things are even more fun (imagine that!).

Q13. In what ways has the blawg affected your career? Are there any career opportunities you hope the blawg will create for you? Like, maybe one day, you could maybe be, if you tried real hard, a Findlaw commentator? (trumpets)

A13. Becoming a FindLaw commentator would make it all worthwhile. But seriously, even before I began “How Appealing” I was well known within Philadelphia and Pennsylvania as an experienced and capable appellate advocate. I figured that it would be useful to become better known in a wider circle, and that certainly has happened. Having an essay published at Slate and being quoted and characterized as a knowledgeable appellate advocate in The New York Times, online at, and in various other newspapers throughout the country have far exceeded my expectations. Lawyers or clients who are looking for quality appellate representation in a distant city often decide whom to hire based on that person’s reputation, experience, and record of accomplishment. Rarely do clients or referring lawyers choose to hire a lawyer because of that lawyer’s lack of a positive reputation, lack of accomplishment, or anonymity. So, I’d say that having a blog has helped my career in terms of remaining marketable and continuing to be in demand from clients and referral sources.

At the same time, it is only on very rare occasion that I specifically mention on the blog what appeals I’m working on. If the focus of the blog were “here’s what Howard Bashman is doing at work,” the blog would be even more boring than it is today.

Does having a popular blog prove anything? I think it does. In my view, the Internet is the ultimate meritocracy. Let me explain why. I’m one of Philadelphia’s most devoted fans of the Atlanta Braves. (Hey, Justice Clarence Thomas roots for the Dallas Cowboys and works in Washington, DC, so why not?) If I want to read about the Braves online, I have an almost unlimited number of choices. But my time, like everyone else’s, is limited. So I seek out the source for Braves information that I believe is the best. Similarly, nothing forces anyone to visit “How Appealing” online. But the fact that my blog receives an average of 7,000 to 10,000 visits per day from a readership whose free time is both quite limited and very valuable speaks volumes, as does the fact that so many view my blog as an excellent way to communicate relevant information to others who share many of the same interests.

As I mentioned previously, from an early age I had wanted to be a journalist. My father passed away suddenly and unexpectedly when I was sixteen, which left my mother, two younger sisters, and me in a precarious financial situation. As a result, before I graduated from college, I decided to pursue law school instead of a career in journalism because I figured that my chances of being self–sufficient immediately after completing school were much greater. And as a lawyer I have fortunately been successful, both financially and otherwise, far beyond my expectations. The blog has provided me with an always–available creative outlet as a writer and commentator. If I could make the same money working as a journalist that I earn as a lawyer, that would present a tempting alternative.

Thus, in closing, the one benefit I hope to achieve from operating “How Appealing” is to become the next appellate columnist for The National Law Journal. (Hey, at least one answer deserves a surprise ending.)

Q14. You don’t really like System of a Down, do you? That’s just a joke, right?

A14. I have eclectic tastes in music, as my blog posts here, here, here, here, here, and here demonstrate.

Last June I decided to drive to my law firm’s litigation retreat in Pittsburgh because, with all the flight–related security precautions, driving five hours versus flying for forty–five minutes along with arriving two hours early and hour journeys to and from the airport at both ends of the trip were all but equivalent. When you drive ten hours over two days, a little System of a Down helps you stay awake. And staying awake is preferable when driving. Also, several Philadelphia Phillies players last year used that group’s music as a theme song, meaning that snippets of these songs would be played as the players strolled up to bat. I’m a proponent of letting lawyers likewise play theme song snippets in court as they approach the podium. Perhaps newly confirmed Fifth Circuit Judge Edward C. Prado will see to it that a proper sound system allowing that to happen will be installed in New Orleans.

Q15. (Here’s our Barbara Walters question.) If you were a zoo animal, which would you be? A gnu? A panda? A giraffe? And why?

A15. I think I’d enjoy most being a koala, so long as I could reside in an indoor–outdoor display resembling my natural habitat.

Q16. You do realize, don't you, that a Bashman mention on How Appealing has become a point of status for law clerks everywhere? Did you ever think when you were a law clerk that you would be such a focal point for law clerks across the land?

A16. The answer to the first part of your question is yes, I have heard that, repeatedly. The answer to the second part of your question is no, definitely not.

Q17. Considering the above, do you feel like you have a responsibility of sorts not to take advantage of your fame? Do you find it ethically challenging to move from being a legal journalist to an officer of the court? Put another way, you receive and post many emails from current law clerks containing tidbits that their judges no doubt would not want them to reveal. Is there a limit, though, to what you would post? Have you received things from starry-eyed law clerks that you thought better of posting?

A17. No appellate judge or law clerk is going to change his or her views about the merits of a case based on the fact that he or she admires my work on “How Appealing” or because he or she has a positive opinion of me. Rather, the results of appeals in which I am involved as an advocate will continue to be determined by the applicable facts and law and by the quality of the advocates’ presentations, just as those considerations govern the outcome of every other appeal.

Of the items on that list of considerations, the only one that I have control over is the quality of my work product. My goal when I entered private practice as a young lawyer was to do top–notch work in the hope of achieving excellent results and to develop a reputation as a fine appellate attorney. Fortunately the lawyers with whom I worked appreciated my work product, and it often achieved favorable results.

As the years went by, I became the chair of my former law firm’s appellate litigation department. Then, when four of my colleagues and I left for Buchanan Ingersoll, I was fortunate to be given the opportunity to head Buchanan’s appellate practice group. Between that, my monthly appellate column in The Legal Intelligencer, and serving as co–chair of the Appellate Courts Committee of the Philadelphia Bar Association, I already had plenty of reasons to ensure that my work today remains as high in quality as it ever was.

During my clerkship on the Third Circuit, I was frequently disappointed by the poor quality of the appellate briefs that I’d read from highly respected law firms. Now, of course, I realize that it’s not the law firm, but the people working on the brief, who determine its quality. And I do my utmost today, just as I have always done, to make sure that the briefs that I write are of uniformly high quality.

I don’t win every case -- no advocate who handles difficult matters does -- but I hope that even in cases in which my client does not prevail, the court nevertheless feels that my side of the case was very well presented. Any lawyer satisfied to rest on his or her laurels is surely going to be disappointed, and I’d never consider doing that. If anything, being more widely known as a result of the blog just makes me even that more vigilant to ensure that my work remains of uniformly high quality. So, while having the blog doesn’t increase my chances of winning as an advocate, it certainly does keep me motivated to ensure that my work continues to be the best that I’m capable of producing.

On the other issue you’ve raised, I’m pleased to say that I don’t think I have ever received any email that a court employee should not have sent to me, nor would I ever hope to receive such an email. Court employees are governed by mandates of confidentiality, and anyone who violates that confidentiality would be at risk of losing his or her job and could face other, even more severe consequences.

Shortly before the start of the U.S. Supreme Court’s October 2002 Term, a pseudonymous email arrived from a contributor to the “Greedy Clerks Board” providing the link to a post on that board which stated that Justice Ruth Bader Ginsburg would be announcing her retirement imminently from the U.S. Supreme Court. I had heard nothing of the sort elsewhere, so I entirely ignored the email and the post. The Wall Street Journal’s “Best of the Web Today” feature linked to the post later that day and contained a headline constructed around the pun of a “Ruth–less” Supreme Court. Of course, the information proved false, and thus my ignoring of it turned out to be the proper course of action. Even if the information had proved true, however, I’d still believe I did the proper thing by refusing to post what at the time was unsubstantiated gossip. And that’s how and where I draw the line. Fortunately, I have many sources who are known to me and are of rock–solid reliability and ethical comportment.

Q18. If the Ninth Circuit appeared on a special judicial-themed version of Survivor, who would win the million bucks and why?

A18. Well, if the U.S. Supreme Court had the final word, I can think of a few Ninth Circuit judges likely to be voted off of the island rather quickly. On the other hand, the judges based in Arizona, and Judge Andrew J. Kleinfeld based in Fairbanks, Alaska, may have an advantage because they are accustomed to extreme conditions. But I’m going to pick a surprise candidate, Judge Rick Clifton of Hawaii. First, he seems like a very nice guy who, as a new arrival on the court, could fly under the radar for quite a while. And being from Hawaii, I think his survival skills would be well honed and much appreciated by the other judges on the court who come from less exotic environments.

Q19. Some of us will soon make the transition from clerking to private practice. It’s pretty cool right now living and working behind the scenes. But soon, we’ll be kicked out of the kingdom. Do you have any advice about how to make that change less painful?

A19. After completing my judicial clerkship, I went to a law firm where I worked very long hours, not always on glamorous projects. But I was very fortunate to be at a firm where my appellate clerkship and my talent at written advocacy were regularly put to good use. Thus, I never had the pleasure of being shipped off to some faraway city to be locked in a warehouse for days reviewing documents.

The keys to sanity and success as a young associate were (1) developing friendships with other associates who were experiencing much of the same thing and (2) working for lawyers who greatly appreciated my efforts. Plus, it never hurts to work on contingent fee cases and win, or to have clients that want you to work on their matters. Even better is having your own clients. Of course, nothing tops being independently wealthy, but that often isn’t an option and certainly wasn’t for me.

Q20. The Academy agrees with your position regarding 18-year-old Macallan’s. However, a reader inquires: why not Laphroig, yo?

A20. Well, first you must learn how to spell the name of that rather rare brand of Scotch -- it’s Laphroaig -- you left out the “a.” I purchased a bottle of the stuff a few years ago for a colleague who had given me frequent rides home from the office in his car. Although that colleague was a big fan of fine Scotch, he confirmed that Laphroaig is an acquired taste, given the heavy influence of the sea on its flavor.

But since it’s springtime now, I’ll opt for something other than Scotch. How about a Campari and soda?

Monday, May 05, 2003
UFO Fest

This weekend, I will be attending the UFO Fest at McMenamin's Hotel Oregon. The festival commemorates the 1950 sighting of a UFO in McMinnville. This UFO was not, as some have been, later identified tentatively as an electrocuted cat.

In my research about the upcoming fest, I located these 60 indicators that you may have been abducted by aliens. If you have these traits, seek help. My personal favorite is the telltale fear of closets -- a sure sign of alien abduction.

Shouts & Murmurs

Ian Frazier has this very funny piece about investing on the New Yorker's website.

The Power of Google

I would never pay to remove the ads from this blog because I never cease to be amused by them. I think that the prominence of the word "sodomy" on the page has led to the ad for "" which has appeared at the top of the page all morning. Hee hee hee. It almost makes one want to post manipulatively.