f/k/a . . . the archives

June 30, 2005

sitting on our hands in July

Filed under: pre-06-2006 — David Giacalone @ 8:23 pm

 

As mentioned yesterday, the opinion-punditry-and-finger-pointing side of

f/k/a is closing down until at least the end of July.  haikuEsq will continue,

with alacrity, to provide haiku from our fine team of Honored Guest Poets,

while dagosan tries to hone his craft.  Prof. Yabut and ethicalEsq have been

locked out and are expected to take their tired old bones on vacation.

 

“noyabutsSN”  Sitting on our pundit’s hands for a whole month won’t be easy.  We’ve

tried before, rather unsuccessfully, to stifle the urge to opine. See poetry not punditry 

and one-breath punditry.  But, your Editor really needs to relax and show a little self-

discipline, and we hope you’ll wish us luck and keep coming for a daily dose of good,

genuine haiku and senryu.  Don’t forget: our ethicalEsq archives are always here for

your edification, along with our Google Search Box.

 


Hands and digits have been on my mind all day.  Haijin Gary Hotham

has a way with hands that I think you’ll enjoy.

 

 








this summer night—

she lets the firefly glow

through the cage of her fingers

 

 

 

 

hand to hand–

the unframed photos

of her life

 

 

 

 

 

 

 

 

 

in both hands–

the water she carries

from the ocean

 

 

 

 








raspberries in season–

all day I’ve needed

my hands

 

 

 

 

no place

to hide my hands

the rain begins







 






 

 

 

by dagosan:  











a piroutte

in her new swimsuit –

standing ovation

 

 

 

 

 


the tailgater 


won’t budge –

my middle finger twitches

 

 



[June 30, 2005]

potluck


jailbird neg  From Troy, NY, comes a nasty sentencing story: the jail-house tv- 

confession defendant, Phillip Pitcher, who killed the aunt who had given

him a home, railed at his relatives and mocked their pain — saying their

neglect caused his actions.  (prior post; Ken Lammers’ prior coverage)

 

tiny check I apologize to Lisa Solomon for not responding before our July hiatus

to her lengthy Comments on marking up outsourcing expenses.  I think our

arguments can stand on their own. 



 

 

                                                                                                                                  handcuffs neg

heralding my music baton

Filed under: pre-06-2006 — David Giacalone @ 4:30 pm


baton n. . . . 6. Heraldry A shortened narrow bend, often signifying bastardy.

 (The American Heritage

June 29, 2005

one very gray sunset

Filed under: pre-06-2006 — David Giacalone @ 9:23 pm


 










red dragonfly
redder still
this sunset



 

 

 

solar eclipse

a beachball

floats on the pool

 

 

 






crescent moon

hair pulled across

his bald spot

 

 


“red dragonfly” – tinywords (May 6, 2005)

“crescent moon” & “solar eclipse” – Snapshots #9 (2001)

 





 

 







awakened

by summer sweat –

you’re still gone



 

 

 

one week without

booming bass below –

the blare of “Jeopardy”


                [June 29, 2005]

 

 

potluck



“proffedUp”  Just when I was thinking Prof. Grace’s been slacking off, he’s produced a very

interesting post, with lots of stats and a chart, over at Point of Law on Med Mal Cost 2004 —

having calculated “the per capita premiums written, the per capita losses incurred, and the

per capita defense costs incurred for medical malpractice” for each state. 

 

tiny check  Our Commander in Chief said it again last night: “We will stay in Iraq as long as we are

needed – and not a day longer.”  If he truly believes there will be a date certain when his anti-

terrorist goals are met in Iraq, and we’ll be gone by the next day, he surely does not understand

the nature of terrorism in the 21st Century.

 

tiny check  Overlawyered.com brings welcome news: the 2nd Circuit has thrown out land

claims by the Cayuga tribe to 64,000 acres of land here in upstate New York.   I’m not so much

interested in the merits, as I am hoping to soon be rid of the endless duelling tribal advertisements —

hoping to sway our Legislature and public as to who will get to build casinos across the Empire State.

 

“tinyredcheck”  Being opinionated, while searching and researching across the internet, has left Your

Editor badly in need of a long punditry-free vacation.  My promise to myself is that f/k/a will go

“all-haiku” for the month of July.   Tomorrow: clearing out my In Box, including that Music Baton. 

 













               napper gray sm

 

 

 

our outsourcing decision affirmed (by me)

Filed under: pre-06-2006 — David Giacalone @ 6:11 pm

In Comments here and here, respectively, Lisa Solomon and Carolyn Elefant

have disagreed with yesterday’s post when outsourcing, just pass on the cost 

(June 28, 2005).  I believe a lawyer/firm should (1) tell a client whenever legal

services are going to be done by a “temporary” lawyer outside of the firm (or,

as in the article that touched off the topic, by individuals overseas not licensed

to practice in the firm’s jurisdiction); and (2) charge the client no more than the

actual amount paid for the outsourced services (plus any properly allocated

overhead), unless the client is fully informed that a surcharge is being added

and told the amount of the surchage.

 

First, let me reiterate a few tenets from my philosophy of “legal ethics”:



  • For me, what is “ethical” is broader than “what you can

    get away with under the Rules or Code.”  [Carolyn asked

    "What's the most equitable -- and ethical -- result?"]



  • The legal profession continually fails to apply fidicuary principles

    in the context of fees — which is where it often means the most

    to clients. (see prior post)




  • The good ficudiary keeps the client fully informed and follows

    all the “shoulds”, not just the “musts” found in ethical opinions.





  • When it comes to fees, it is particularly obvious that lawyer

    self-regulation has left the foxes guarding the hen house, with

    only a few sleepy watchdogs watching the foxes.

That being said, the opinions cited by Lisa Solomon are not convincing

regarding what a law firm’s obligation should be to a client when legal

services are provided by temporary lawyers or off-shore lawyers. ABA

Ethics Opinion 88-356, which is stressed by Lisa, is particularly unpersuasive 

 

 

DISCLOSURE of OUTSOURCED Legal Services

 

 

Op. 88-356 correctly concludes that “where the temporary lawyer is performing

independent work for a client without the close supervision of a lawyer

associated with the law firm, the client must be advised of the fact that the

temporary lawyer will work on the client’s matter and the consent of the client

must be obtained.”  Disagreeing with this limited obligation, ethics committees in 

numerous states have correctly expanded the disclosure-agreement mandate to

all or virtually all utilization of out-of-firm legal service providers.



  • See Oliver v. Board of Governors, Kentucky Bar Ass’n, (Ky. 1989),

    779 SW 2d 212 (disclosure should be made of a firm’s intention to use a

    temporary attorney “in any capacity, in order to allow the client to make

    an intelligent decision whether on not to consent to such an arrangement.”  

    Ill. St. Bar Ass’n Advisory Op. on Prof. Conduct Op. 92-97 (Jan. 22, 1993);

    Ohio Bd. of Comm’rs on Grievances and Discipl. Op. No. 90-23 (Dec. 14,

    1990) (requiring disclosure of temporary lawyers under Code of Prof.

    Conduct); Bar of City of New York Comm. on Prof. and Judicial Ethics,

    Op. No. 1988-3 (Mar. 31, 1988), reaff’d, Ethics Op. 1989-2 (May 10,

    1989) (“The Committee continues to believe that the law firm has an ethical

    obligation in all cases . . . to make full disclosure in advance to the client of

    the temporary lawyer’s participation . . . and to obtain the client’s consent.”);  

    D.C. Ethics Opinion 284 (disclosure required “whenever the proposed use

    of a temporary lawyer to perform work on the client’s matter appears

    reasonably likely to be material to the representation or to affect the

    client’s reasonable expectations.”);  “Contract Lawyers in Kentucky, by

    Del O’Roark, KBA Bench & Bar, Vol. 61 No. 2, Spring 1997; and  “The

    Economics and Ethics of Hiring a Temporary Lawyer,” by Peter Gardner, re

    Vermont and New Hampshire, and fn. 31 on other sources).

 

PERMISSIBLE FEES on OUTSOURCED Legal Services

 

 

Once you have disclosure to the client of the use of outsourcing for legal services, you

will surely be faced with (1) a client smart enough to ask, “how much will the cost you

and how much will you charge me? or (2) a client not smart enough to ask that question.

In either situation, the ethical fiduciary will fully inform the client of the financial arrange-

ment (what else is a fiduciary for?), allowing the client to enter into informed decision-

making or negotiation. 

 

commandments Lisa Solomon points primarily to ABA Op. 88-356 for the proposition that no disclosure

is necessary of the amount paid by the firm for the services, and the conclusion that profit

can be added to the cost entailed by the firm.  Unfortunately, there is very little reasoning

in the ABA Opinion.  Here’s the entire discussion.


“Assuming that a law firm simply pays the temporary lawyer reasonable

compensation for the services performed for the firm and does not charge

the payments thereafter to the client as a disbursement, the firm has no

obligation to reveal to the client the compensation arrangement with the

temporary lawyer.  Rule 1.5(e), relating to division of a fee between lawyers,

does not apply in this instance because the gross fee the client pays the firm

is not shared with the temporary lawyer.  The payments to the temporary

lawyer are like compensation paid to nonlawyer employees for services and

could also include a percentage of firm net profits without violation of the Rules

or the predecessor Code.”

The same approach is taken by other Committees after Op. 88-356.  Beyond saying

that the total fee has to be reasonable, there are two themes:


(1)  Just don’t call it a disbursement, and you can charge more than cost;

(2)  It’s not a “split fee”, so you don’t have to disclose anything about the

financial situation.

This is, for me, not the reaction of a proud profession of fiduciaries who always put

the client’s interests first.  It’s lawyers “lawyering” and using semantics to get more

money from their clients.  The Virginia Bar Ethics Opinion 1712 (1998) spelled out

the ploy:  



“Whether a law firm retaining a Lawyer Temp must

disclose its payment arrangement with the staffing agency

to the client depends on the particular facts.  ABA Opinion

88-356 stated, and California Formal Opinion 1994-138

agreed, that when the hiring firm does not charge the Lawyer

Temp’s compensation to the client as a disbursement, there

is no obligation to disclose the compensation arrangement

with the Lawyer Temp to the client.  On the other hand, if

the payment made to the staffing agency isbilled to the client

as a disbursement, or a cost advanced on the client’s behalf

(for example, “To-Reimbursement of costs advanced to staffing

agency for temporary lawyer”), then the hiring firm must disclose

the actual amount of the disbursement and also disclose any

mark-up of  or surcharge on the amount actually disbursed to

the staffing agency.”

 

“. . . Since the charge is not represented to be the hiring law

firm’s actual disbursement of funds for client-reimbursement,

the hiring firm does not thereby misrepresent as an out-of-pocket

disbursement what is actually its out-of-pocket disbursement

plus a mark-up.”

 

The Virginia committee says whether there is a need to disclose the  honest

financial arrangement for the temporary services  “depends on the facts.

However, the facts are the same — it is only the nomenclature used on the

Billing Invoice that is different. 

 

A similar bit of lawyering is done with the “fee split” issue.  The Committees

should be saying: “What is this situation most like?  Isn’t it very analogous to

a fee split?  The money that the client pays for the package of legal services

goes in reality to two different legal service providers.  We should give the

client the same treatment afforded in Rule 1.5(e) –  full disclosure of the

arrangement and the right to consent to it — “including the share each lawyer

will receive” — before the arrangement is made.   

 

Instead, the Friendly Watchdogs say, “Hey, it’s not a fee split, the client just

pays a single bill to the original law firm.  See [how clever we are], no fee is

actually split.”  So eager were they to find this loophole, none of the Ethics

Committees have bothered to acknowlege the wording in Comment [7] to

Model Rule 1.5.  It says very clearly:


“A division of fee is a single billing to a client covering the fee of

two or more lawyers who are not in the same firm.”

It is difficult to say which principal (other than the one saying the client always

gets the short side of the wishbone) is being served by ignoring how much this

“division of fee” parallels the Temporary/Outsourced Lawyer situation — where

the client receives a single billing covering the legal services of both the original

firm and the “temporary lawyer.”   




  • Surely, the client’s right to disclosure and consent can’t depend on

    whether the Temporary Lawyer is paid before or after the client

    pays the bill that charges for the Temp’s legal services.

The Virginia ethics committee, along with Carolyn Elefant, make an analogy,

to billing for associate hours, which is more than the associate is paid per

hour in salary.   Ethics Opinion 1712 gushes:


“That the associate is an employee and the Lawyer Temp is

an independent contractor seem to be a distinction without a

difference in terms of non-disclosure of the spread between

compensation paid and rates charged.  In each instance the

spread, or the mark-up, is a function of the cost of doing

business including fixed and variable overhead expenses, as

well as a component for profit. In each instance, too, DR 2-

105(A)(1) mandates that a lawyer’s fees shall be reasonable.”

spiltBucketG   With all due respect, there seem to be quite a few important differences:


tiny check Virtually every client is well aware that billing rates for associates

are higher than associate hourly pay.  They expect that the lawyer

is paying benefits, and overhead and trying to make a profit from

the working of associates.

 

tiny check Some savvy clients are very much aware of how much associates

are likely to be making and may very well negotiate their hourly rates

using that information.

 

tiny check  The firm has significant overhead expenses and sunk costs related to

each associate, and has every right to make a profit for taking the

entrepeneurial risk and using the resources well.  The firm also cannot

readily lay off associates when times get slow — not without greatly

affecting morale and perhaps provoking law suits.


Firms often point to figures showing that per-associate

overhead is an enormous percentage of their hourly billing

rates.  Why aren’t they willing to disclose similar ratios for

cost-plus-profit billing that is based on $10 per hour legal

services performed in India? 

tiny check  The firm has virtually no overhead expenses or sunk costs related to the

Temp — independent contractor — lawyer.  The firm can also use temporary

services when needed and eschew them when not needed.  There is no

entrepeneurial risk.  The risk of not being fully paid for the disbursements

for temporary lawyers is not different than other kind of third-party costs.

The firm has ways to guard against that risk.

 

tiny check  Most clients would be surprised and irked to know that a law firm was

attempting to create profit-centers for services that are obtained outside the

firm — especially if such services have traditionally been reimbursed by the

client as disbursements and costs that are charged separately. 

Let’s end with Carolyn’s ultimate question: “Finally, if profit is what it takes to encourage

this type of arrangement – which is clearly beneficial to a conventional law firm set up,

then why not reward those attorneys who do it? ”  There are already plenty of reasons

for law firms to use these arrangements.  As Del O’Roark points out, “contract lawyering

offers flexibility to the profession. It allows a firm to leverage its output in peak times or

meet one-time requirements for a lawyer with special expertise without taking on all the

overhead.”  Peter Gardner echoes these conclusions:


“It appears that temporary lawyers can, indeed, be an integral part

of a firm’s business strategy as long as applicable professional ethics

provisions are understood and complied with. A temporary lawyer is

typically an experienced independent contractor who provides consistent,

high quality work product on specific or general projects for law firms

and solo practitioners (I will refer to both as “firms”). A temporary lawyer

enables a firm to manage work flow and resources efficiently and cost-

effectively, and may even be less expensive to a client than were a firm

to engage outside counsel.”

“Outsourcing” can make a law firm more competive — more responsive to the needs

of the client (so long as quality is assured and efficiencies realized).  Firms should not

need extra inducement to adopt the practice. 

 

If traditional rules on the treatment of disbursements and dividing fees make sense  complaint bill

ethically — and I believe they do — they should be followed regarding outsourcing and

the use of temporary lawyers.  Fully-informed clients should be allowed to make 

reasoned decisions and to bargain from strength with their fiduciary-lawyers. We

should not leave the decision to use a temporary lawyer or off-shore legal service

provider solely to the lawyer.  And, we should not leave it to the lawyer to decide

the size of any mark-up above the firm’s costs for such services.


 

June 28, 2005

listening to the music in me

Filed under: pre-06-2006 — David Giacalone @ 6:58 pm

I had hoped to post my Music Baton by now, but other things keep

interfering.  I’ve also been trying to articulate why I listen to so much

less music now than I did in the first 50 years of my life.   It may indeed

be the influence of haiku — the desire to focus on one thing at a time,

to be receptive to enjoying and appreciating the small moments of life,

and (please excuse the Kiki Dee reference, Evan), to listen to the

music in me, rather than someone else’s recorded music. 

 

 

juke box neg   John Stevenson and Peggy Lyles would understand (and

say it better):

 

 

 

 







his power out,

my son calls to talk about

nothing special

 

 

 

 

morning sun enters

   the sleeper’s

      ear

 

 

 

 

 

 

 

 

border of sleep

   the sound of nearby breathing

   . . . mine

 

 









 

 

 

a deep gorge . . .

   some of the silence

      is me

 

 

applauding

the mime

in our mittens

 

 

 

 

 

 

 

 

 


dawn

before there is any

tune in my head

 

 

 

 

 


“his power out,” & “dawn” -  Upstate Dim Sum (2005/I)

“applauding the mime” – Quiet Enough (Red Moon Press, 2004)

“morning sun enters” & “some of the silence” & “border of sleep” - Some of the Silence (1999)

 




 

 

 


New Year’s Eve –

the harpist’s hands

still the strings

 

 







distant jazz

a calla lily

catches the rain

 

 

“distant jazz” - To Hear the Rain (Brooks Books, 2002)

“New Year’s Eve –” - Upstate Dim Sum (Special Guest, 2005/I)

 

 


 








  • by dagosan                                               










looking

for a wedding ring –

seeing she has one

 

 

 




sticky, hot and hungry:

five politicians

at my front door

 

[June 28, 2005]

 

potluck


balloons small  HAPPY 5th BIRTHDAY to James Arthur Giacalone (DOB June 28, 2000)!!

 

tiny check  Eugene Volokh sparked an interesting conversation yesterday by

asking about “Terms That Have Become Unmoored from Their Etymology in

Our Memory.”   (e.g.,  “dialing a phone number”without a rotary dial,  or using

“cc” when not sending a carbon copy).  

 

A couple of the Commentors — and I really do appreciate the      music staff

civility and focus shown by his readers in their comments — suggested that

the term “album” no longer makes sense, now that we have music coming

out on CDs.   I disagree.  We need a word to designate a collection of songs

released together as a unit under a particular title.   The collective noun used

should not depend on the medium used for recording the songs — which is

and will be ever-changing.  Thus, you are buying a particular Beatles “album” on

vinyl, or cassette, or CD, or DVD, or in some MP3 format.   And my Emmylou

Harris album “Luxury Liner” did not stop being an album when I recorded it

on a tape cassette from vinyl in 1976, nor when I recorded it onto a cassette

from the newly-released CD format in 2004. 




  • juke box The relevant Quick Definition of “album” at the OneLook Dictionary is:   

    “one or more recordings issued together; originally released on 12-inch

    phonograph records (usually with attractive record covers) and later

    on cassette audio tape and compact disc.”




  • Online Etymology Dictionary states that albums used to be used to hold

    autographs of celebrated people; that the term “photographic album” was

    first seen in 1859, and meaning “long-playing gramophone record” is from

    1957, because the sleeves they came in resembled large albums.   

PPE  While thinking about the Music Baton, I recalled the very first song from

the radio that I really, really, really liked.  I was 8 years old, in 1958, when Sheb Wooley’s

Purple People Eater” was the #1 song for six weeks.  You can read the lyrics, hear Sheb

perform and see the PPE by clicking the link.

when outsourcing, just pass on the cost

Filed under: pre-06-2006 — David Giacalone @ 3:18 pm

Carolyn Elefant of MyShingle has asked “Is There An Ethical Obligation to

Pass On Cost Savings from Outsourcing?”  After checking my own viscera,

and confirming them with Model Rule 1.5, and Comments thereto, and with the

Statement of Principles [in Billing for Services and Disbursements] of The Task

Force on Lawyer Business Ethics (ABA, 1996) (excerpts via LawCost.com), I’ve

concluded:


Every arrangement for fees related to legal services and  

disbursements must be premised on “at the least, a fully

informed client.” Statement of Principles

 

A law firm that plans to outsource a client’s legal services

must fully disclose the arrangement to the client, and must

receive the client’s agreement. (see Model Rule 1.5(e) re

division of fees; Principles on Staffing)

 

“complaint Bill”  “It is the obligation of the lawyer and law firm to

assure that the client fully understands and agrees to the basis for

billing for disbursements and other charges.”  This includes

“whether overhead other than direct charges paid to the

vendor are included.”   Principles on Disbursements/Costs.

 

A lawyer shall not make an agreement for, charge, or collect . . .

an unreasonable amount for expenses” (Rule 1.5 (a)), but may

only charge “a reasonable amount to which the client has agreed

in advance or . . . an amount that reasonably reflects the cost

incurred by the lawyer.” (Comment [1] to Rule 1.5)

A law firm wouldn’t charge a client a “profit margin” above the fee of an expert

consultant or witness, and therefore should not do so with fees for outsourced

legal services.  If it chooses, it might allocate reasonable overhead for arranging

the outsourcing (which is a “cost” to the firm), but it is difficult to imagine that this

amount is anything but de minimis. (I presume that attorney time spent within the

firm reviewing the work-product from out-of-firm sources will be billed to the client

or has otherwise been factored into the fees be charged.) 

 

Therefore, I agree with George Washington University law professor Thomas  complaint billFN

Morgan, who is quoted recently saying that ethics rules require law firms to pass on to

clients cost savings from outsourcing.  (see Made in India By Daniel Brook, Legal

Affairs (May/June 2005).  Unless Lisa Solomon is equating a “reasonable measure

of profit” with “properly allocated overhead,” I disagree with the promotional materials

written by Lisa, where she says that an “attorney may charge the client a premium or

reasonable measure of profit in excess of the research and writing provider’s cost to

the attorney, as long as the total charges to the client are reasonable.” 



  • You can find relevant excerpts from the ethics materials cited in

    this post, here

 








city life–
even melting snow
costs money




spring rain–
hitting the windows
that cost me so much


 










saved from the fire
a nest in its beak…
the crow moves on


ISSA  translated by David G. Lanoue      


 


 

June 27, 2005

noodling lawfully

Filed under: pre-06-2006 — David Giacalone @ 5:52 pm








10 PM bonus: from our Comment Section:

 


record heat

the ice cream man

adds a gallon to the radiator

 

                        Ed Markowski 

 

 

You don’t need me to provide you with legal commentary on today’s important

Supreme Court opinions.  There’s plenty at SCOTUSblog, of course, including

Ten Commandments discussion and Grokster discussion by weblog heavyweights.

 

“Commandments”  I do want to agree with Ann Althouse’s assessment:  the outcomes in the

two Ten Commandments cases make sense — as a matter of logic and of legal judgment. 

Like Justice Breyer (my Antitrust professor 30 years ago), I believe that judges very

often need to “judge” in constitutional law cases — they’re not merely answering True/

False questions (with brightline rules); they need to reason and explain with essays and 

even footnotes.

 

Prof. Althouse is also correct in noting that the results in these two cases are not really

all that important. (Similarly, I pointed out recently that icons are not what makes

religion important in our lives or our nation’s history.)   Ann asks for calm and tolerance:


Everyone needs to learn to get along, and those who want to purify   

things too much don’t impress me. Sure, they’ll be put out if the government

wins in these cases. I don’t think people who take great offense easily should

be driving the outcomes…. I think most atheists … and many religious people …

accept and even enjoy seeing evidence of other religions around them. It’s part

of art and history and culture — part of the beauty of the world that we live in

(either by the grace of God or by pure, weird chance).”   (via SCOTUSblog)

 

 Eugene Volokh reposts a piece discussing how many of the Ten Commandments   CarlinPorkChops 

are legally enforceable under modern American law.  Only three, with lots of

exceptions and ironies (do you know which ones?).  Prof. V asks “can you imagine

a law prohibiting coveting?”  In When Will Jesus Bring the Pork Chops?, while

winnowing down the Ten Commandments to two (be honest and be loyal), George

Carlin notes (at 17): “THOU SHALT NOT COVET THY NEIGHBOR’S GOODS. This

one is just plain stupid. Coveting your neighbor’s goods is what keeps the economy

going.”




  • Finally, I disagree with Prof. Bainbridge that “one might almost

    characterize these ultra-fine [religion clause] distinctions as 

    being Pharisaic.” “Pharisaic” means being “Hypocritically self-righteous  

    and condemnatory” or “marked by hypocritical censorious self-

    righteousness.”  Such descriptions seem to apply far more

    to “religionist” politicians, believers and webloggers, who

    want to force the public display of their religious icons on

    all Americans, despite the First Amendment, than to Court

    members who are trying to find a moderate test that should 

    be acceptable to all fair-minded Americans. 


afterthought (7PM):  To paraphrase Prof. B: “I hate it when Steve

corrects his mistakes.”  Prof. Bainbridge has changed “Pharisaic”

to “Scholastic.”  Like the Commentor BG,  I don’t think “scholastic”

fits well either.  However, as I have a hard enough time finding

apt adjectives for Prof. Yabut and my other weblog alter egoes, I’m

going to let Steve do his own thesaurus surfing — especially, since

I have no idea which meaning of scholastic is being suggested over

at ProfBillboard.com. 

 

Irving Hexam’s Concise Dictionary of Religion, gives the following

definition of Scholastic, which seems inapt to me when describing

today’s Court decisions:


 ooh “SCHOLASTIC: derived from SCHOLASTICISM it 

became a term of abuse following the PROTESTANT

REFORMATION implying dead arguments based on

LOGIC unrelated to real life.”

 

“tinyredcheck”  The Justices of the Supreme Court are surely heading for summer

vacation getaways.  Prof. Chang is already on vacation, but Upstate

Dim Sum journal keeps working for us in his absence:

 






 

wildflowers

on both sides of the road

I miss the exit

 

 

 

 






waterfall

she pulls me

away from the edge

 

 

 

 

mountain lake –

basking

in your reflection

 

 

 

exit   Yu Chang – Upstate Dim Sum (2005/I)

 

 

 






  • by dagosan                                               










one bee and

a gardenful of roses –

on line at the ice cream truck

 

 

[June 27, 2005]

 


 

tiny check  dagosan is taking it kinda easy today, too, but Your Editor 

has culled out some of dagosan’s clunkers and compiled


collection for your perusal and enjoyment. 

fishing pole  potluck


tiny check Jonathan B. Wilson at Point of Law informed us yesterday that

Georgia has legalized noodling.  We’re not presented with the definition of

noodling, but Wikipedia explains it is a mostly-Southern sport in which

one uses ones hands to catch catfish.    Being a Northerner and a lawyer,  I

would have tried using my noodle, and thereby put myself in even greater

physical jeopardy than the fellows who stick their hands and arms into catfish

holes as bait. 






 


in spring rain
chasing the elusive fish…
dog on the shore




 







the fish
unaware of the bucket…
a cool evening

 




heat shimmers–
in front of the noodle shop
a chopstick mountain



ISSA  translated by David G. Lanoue       

                                                                                                                           spiltBucket

 

 

david giacalone: haiku and senryu (2004)

Filed under: pre-06-2006 — David Giacalone @ 1:28 pm

 


– below are haiku and senryu written by this weblog’s Editor, David A. Giacalone.  They first appeared on the f/k/a homepage, under the name “dagosan”the unedited daily offerings from dagosan can be found in his  “scrapbooks” by going to the dagosan archives page –


 


                                                                                                                               crows



sleet turns to rain -

snow buddha’s visit

cut short

                            [Dec. 31, 2004]

 



 

 


 
 

 


one smirking

snowman

one hatless scarecrow

 

                                [Dec. 30, 2004] 


 

 

 

 

 

 

 

 

children awash

in christmas gifts –

tsunami on tv

 



      [Dec. 28, 2004]

 

 

 

 

 

 


coins inside the walnuts -

great-grandchildren

cracking a smile
                              [Dec. 27, 2004, for Grandpa Bart] 


 

 

 

 

 

 

 

 

 

cross words over turkey

over parenting –

the Yule log burns


                              [Dec. 26, 2004]

 

 

 

 

 

 

 

 

 

 


a sleigh-shaped cloud

floats by -

Christmas morning blue sky   

                                                        [Dec. 25, 2004]    

 

 



 

 

 


Nana serves

Grandma’s recipes —

Christmas Eve calamari    

                                                        [Dec. 24, 2004]       

 

 

 

 

 


 

 

 

 

 

two-hour backup –

just past the accident,

Christmas Eve rainbow

 

 

 

 

 

 
 

wrapping and

packing–

she pastes on a smile


                                             [Dec. 22, 2004]

 

 

 

 




  






married a decade

she hides

the mistletoe

 

 





married a decade

he buys

new mistletoe

                                                     [Dec. 20, 2004]

 

 

 

 

 

 

 

 

 

 


wind chill zero

outside the high school

not one jacket zipped

                                   [Dec. 18, 2004]

 

 

 

 

 

 

 


3 am nature call–

the nagging drip

of icicles

                    [Dec. 17, 2004]

 

 

 

 

 

 

 

 

 

 


 

 


fogged window -

too cold

meets too hot

                                   [Dec. 15, 2004]

 

 

 










winter wind

rattles the windows -

the fridge hums louder

 

                                   [Dec. 14, 2004]

 

 

 

 

 

 

 

 

 


birthday phone call -

your triple bypass

trumps my bad knee

 

                                            [Dec. 13, 2004]

 

 

 

 

 


waiting room -

the masked man

brings his own magazine


                               [Dec. 11, 2004]

 

 


 


eyelid lightshow –

he hits the snooze button

one more time


                              [Dec. 10, 2004]





 

 

 

 

 

 

 

Sunday morning

omelet

for one

 

 



a single

mimosa

- hold the toast

  

 

 

 

 

 



two strawberry blondes

lean into the wind -

cattails lean with it                                        

                                          [Dec. 4, 2004] 


 

 

 

 

 
snow falls

from a low gray sky -

she lifts the sauce pan lid

 

                           [Dec. 3, 2004] 

 

 



 

a favorite tree

reflected in the river -


made me look again

                                            [Dec. 2, 2004]

 

 

 

 

 

 

 

 

 

 

the river mirrors

the busy bridge -

one duck races the cars

                                            [Dec. 1, 2004]

 

 

 







under nana’s afghan –

dreaming homemade 

bread and meatballs


                                                   [Nov 30, 2004]

 

 

 

 

 

 

 

 

 

 

the shower massage

finds her navel -

Buddha smile                                

                                    [Nov 23, 2004] 






 


 


 


 


 





rainy night drive –

squinting at glare 

through dad’s eyes

                             [Nov 21, 2004]






 

 

 

 

 

 

 

clogged drain–

300-pound plumber

under the sink

   

                                        [Nov.20, 2004] 

 

 

 

 

 

 

 

 

 

 


sitting to meditate-

toilet and nose

start to run


                        [Nov. 15, 2004]


 

 




waving from the river bank

waving back

cattails

               [Nov. 13, 2004]



 

 

 

 

 


 





handful of pawns

protect the king -

Veterans Day




                              [Nov.11, 2004



  


 


 


even lovelier

naked

backyard elm

 

                 [Nov. 10, 2004]    

 

 

 

 

 

 

 

 

 

 

almost sunset -

mottled clouds

blush at my stare 

                                [Nov 7, 2004]  

 



 


 


 

 

 


election over

dirty laundry

awaits

 

                 [Nov. 4, 2004]







 

 

 

 

 


 

 

 




candy for goblins

disappears early –

sneaking out to buy more

 

                                [Oct. 28, 2004]

 

 

 

 

 

 

 

 

 


Hunter's Moon sm:

Lunar Eclipse [and World Series] Sequence

 

 



eclipse tonight –

no cover

no rain date

 




full moon

encircled by clouds

– awaiting the hunter

 

 

 

 






pumpkin

floating in the river

Hunter’s Moon

 

 











wow, it’s orange!

tawny, she corrects

_ _ Blood Moon



 

 

 

 

 

 

out of the

         shadow 

              redstockings





 







                            [October 28, 2004]



 

 


 



first night at her place -

three-dog gal

no-dog guy

                         [Oct. 26, 2004]

 

 

 

 

 

 

 

 

 

 

 



toilet seat up -

bedroom

suddenly chilly

                          [Oct. 25, 2004]

 

 

 

 

 





another stray dog

finds

her

                    [Oct. 23, 2004]

 

 

 

 

 

 

 

 

 








alongside

the silent crew scull -

coach’s angry bullhorn          

                                                 [Oct. 19, 2004] 

 

 

 







cold fingers –

sitting on my hands

before touching hers                       

                                              [Oct. 18, 2004]




 

 

 

 

 

 

 





first date:

she groans with pleasure

. . .  at my pun

                            [Oct. 20, 2004]




 

  

 

 

 

              

 

 


the stale air

of an old man’s home –

opening my front door

                                       [Oct. 21, 2004]

 

 

 

 

 

 

 





 

 

health food store:

unnatural sneeze

in the candle aisle

                                    [Oct. 16, 2004]

 

 

 

 

 






 

 

 


expecting rain,

smiling at

the blue sky


                            [Oct. 14, 2004] 

      

 

 

 

                 

 

Columbus Day trip


red and yellow crayons

turn into stubs

                           

                                          [Oct. 12, 2004]

 








 

 


 

waking too late

to see the dawn

- he pencils-in sunset


                                           [Oct. 7, 2004]

 

 

 

 

 

 



 



blinds open

to the midday sun –

summer’s gone                   


                     [Oct. 1, 2004]


 


 

 

 




 

just before

the pale orange moon

a bright orange sky

                                [Sept. 28, 2004]

 

 

 

 

 

 

 

 

 










harvest moon

over Wal-Mart –

schlepping groceries    

                                           [Spet. 26, 2004]

 

 

 

 

 

 

 

 

 

 

 


no coffee brewing

no scent of love –

the hermit wakes


 

                                            [Sept. 25, 2004]













 

 

 

 

 

 

 


visiting mom and dad –

faces and refrains

gettin’ old

           

                                  [Sept. 22 & 26,, 2004] 






 

 

 

 

 

 

last day of summer -

the old cat naps

in the sunny window         

                                        [Sept. 21, 2004] 

 

 

 

 

 

 

 

 

 

 

caught hiding the stash -

colombian

caffeine 

                                           [Sept. 19, 2004]

 

 

 

 

 

street closed

for the Saturday Faire

the only sound is rain


 

                                           [Sept. 18, 2004]

 









 

 

October peonies -
still perfect
from the curb  
                




[Sept. 15, 2004]

 


 


 



supine at noon

sunshine spotlights

one big toe


[Sept. 14, 2004]



 


 


 


a breeze! 

a draft!

the window fan stirs debate       

 

                                    [Sept. 13, 2004] 




the double amputee

winces 


[Sept. 11, 2004]

 








              

 

 

 

 

 

 


 

first day of school

bus stop horseplay 

wakes the empty-nester

               

                              [Sept. 7, 2004]

 

 

 



 

 

 


hand-in-hand

until

the mosquito mugging

                                  [Sept. 3, 2004]

 

 

 

 







 

Labor Day

the parade starts and ends

at the mall

 

                         [Sept. 2, 2004]

 

 




 


 


ancient snapshot

their last smiles

for the camera

 

                         [Sept. 1, 2004]

 

 








 

 

 

 

 

 


soap-stung eyes —

an eight-year-old’s face

flashes in the mirror

           

                                        [Aug. 28, 2004] 





 


 






 

just below

the “riverview apartment” –

ten ripe garbage cans

           

                                        [Aug. 27, 2004] 

 

 

 

 

 

 

 

 

 

 

 



honking at my window –

geese above

cabbie below

                        [Sept. 19, 2004]

 

 



 

 

 

 

 

 

 

 

 

 


sleepless night

she won’t stop

leaving me alone            

                                        [Aug. 21, 2004] 

 

 

 

 

 

 

 

clock tower with crescent moon

–  only the moon

follows us home                           



                 [Aug. 20, 2004] 

 


 

 

 

 

 

 

 


typing stops –

laptop activist

gets off his butt                          



[Aug. 17, 2004]



 

 

 

their babies

never cry

never stop crying


[Aug, 25, 2004, for Dafur's victims]      

 

 

 

 

 


the garbage bag lands –

squirrel and I 

startle eachother

                                      [08-13-04] 

 

 

 

 

 

 

 




to-read list

and summer corn

growing, growing

 


                         [Aug. 12, 2004]

                                 Legal Studies Forum XXIX:1 (2005) 

 




 

 

 

 

 

 

 

 





tailgater

     passing on a sharp curve –

take a deep breath




[Aug. 8, 2004]

 

 




waking, the agnostic asks

who dried the dishes

and hung that sun? 


                                   [Aug. 6, 2004]

                                           Legal Studies Forum XXIX:1 (2005) 


 

 

 

 

 

 

 

 

 

 

a good pout

rudely interrupted

by impatiens

                          [Aug. 5, 2004]

 







 

 

 


a welcome smile

from the past –

obituary photo

                                [08-01-04]

 

 

 

 

 

 

 

 

 

 

old dog and master

jostling

for the tiny spot of shade

    

                  [07-31-04]

                  Legal Studies Forum XXIX:1 (2005) 

 

 

 

 

 

 

 

 
cursing

the unset alarm clock -

late for church again

                                                  [07-30-04]

 




 



 

waking from a young man’s dream

last night’s body

creaks and groans

                                              [7-27-04]

 




 

 

 




in bed 

alone

with a nagging back

                                   [7-25-04]

 

 

 

 

 

 

July escape –

pensioner parked

      in front of a fan

                                             [07-22-04]

 




 

 

 

 

 

 

idling

at my bedroom window 

the garbage truck    

                                [07-20-04]

 

 

 

 



 

 

 

 

 

 

 

 

the old man stops

at a green light

driving into the sunset                       

                                                [7-17-04]






 

 

 

 
jaws clenched

writing

haiku

             [07-16-04]

 

 

 

 

 

 

 

 

 



mottled gray sky

impatiens

grow louder                        [7-15-04]

 

 

 

 

 

 

 

 

 

 

 

false dawn

the paperboy hits

the snooze button                        [7-14-04]

 


 

 

 

 

 

empty punchbowl:

husband and wife

avoid the mistletoe

                              [7-13-04]   

 

 

 

 

 

 

 

 


arm too short

hand too wide –

the space between sink and stove            [07-12-04]

 

 

 



 

 

 

 

 

 

 

 

 


moonless night – 
above our yard 

the Goodyear Blimp

                                [07-08-04]










frog and I

eyeing

the mosquito

 

 

 

 

the late-riser

stays for an encore:

eyelid lightshow

                                 [07-07-04]

 







 

 

startled

by the old guy 

in the men’s room mirror                 

                                     [07-05-04]

 

 

 

 

 

 

 


the holiday starts

like any day –

toilet flushes                         [07-04-04]

 

 

 

 

 

 

 

 


children’s voices rise

one neighbor frowns

one smiles                          [07-03-04]

 

 

 

 

 




finale:

fireflies

follow fireworks

                          [07-02-04, for e.m.]

 

 

 

 

“maintain tunnel speed”

a heavy foot is
suddenly light

                                           [dag, 07-01-04]  

 

 

 

 

 

 



 

hawk

then helicopter –

highway patrol

                                [07-02-04]

 

 

 

 

 


new paperback – -
the sun sets 
without me

                      [06-29-04; The Heron's Nest  (March 2005)] 
 

 





 


 


 



soccer novice 
practices his footwork: 
daughter teaching dad

              

                                    [06-27-04]    

 



 

 

 

 

 

 


summer blockbuster

fireflies outdo

Spielberg

 

          [06-24-04]

 

 

 

 

 






comparing aches 

before the show –

senior organ recital

                               [06-23-04, thanks r.n.]  

 

 

 

 

 

 

 

her dimpled smile! 

no exclamation point 

needed

                            [06-22-04]  

 

 

 

 

 


late-comers:

fireflies join

the solstice party

 

                               [06-20-04] 

  

 

 











 

 

summer’s here!

worked up a sweat

sleeping


[06-18-04]


 


 


 

guest room

old friend
on an old mattress


[06-13-04] 

 

 

 

 

 

it’s pink! it’s purple!

sunset inspires 

    more bickering

                             frogpond, Vol. XXVIII, #2 (2005)

 

 

 

 

full tummies
and empty bladders
not for long


[06-10-04] 





 

 

 

have you
finished this page yet,
fly on my thumb?




        [06-10-04]



 


 


 



storm alert
every kind of cloud  
in one sky



    [06-02-04;  Legal Studies Forum XXIX:1 (2005) ]  


 


 


 


“All-U-Can-Eat” sign
a vulture discovers  
the roadkill deer 


                           [06-01-04] 


    




    



gold star nana   
holds one small hand
remembers another
                               [05-31-04]


 


 


 



New Guinea   
dad rather not 
talk about it
                        [05-29-04]


 







 







butterfly’s birth

- the unpacked swimsuit smells

of moth balls

                     [dag, 05-14-04]










her due date

we hug 

       on an angle –

                               [dag, 05-07-04]









the dogwood blooms:

a fat lady on tiptoes

enhales deeply

                         [dag, 05-01-04]










 






parka on its hook –

a Spring day colder

than it looks

                       [04-25-04]



 

 







earth’s birthday:

recycling our Valentine

cards

               [04-22-04]


 









hardboiled eggs:

one peels easily

one doesn’t

                   [d04-06-04]


 









radiator

colder than my fingers –

first day of Spring

                [03-20-04]

 




 


 


never
noticed that tree until
this sunset
                   [02-26-04]


 



 






almost dusk
driving while distracted
by tree after tree
                           [02-23-04]


 




winter twins – -

which tree blossomed

last Spring?

                   Legal Studies Forum XXIX:1 (2005) 



 


 




mom’s genes:

coffee-talk about

arthritis

……. dag, 02-12-04]



frozen waves

hello-goodbye along

the icy river

                        [02-09-04]





 



digital age -

at the keyboard watching

aging digits

                            02-06-04]



.

 


 


the early alarm
is quickly forgiven:
pink-cloud morning 
                                          [01-29-04]


 


 



                 




waiting undressed
to meet the new doctor
cold feet
                        [01-27-04 (thanks, Alice]


 


 



waking alone 
the morning after:
dirty dishes
                        [01-20-04]






 


 


cloud-covered twilight   
re-setting the printer    
to grayscale
                           [01-17-04]




 


 


never knew   
the name of that alley:  
new eyeglasses
                            [01-12-04]



 



 



afghan warming  
on the radiator –  
brilliantly misplaced

                                             [ 01-11-04]


 


 


 


silently  
she lures me to the kitchen  
peeled tangerine
                                     Tug of the Current (HSA,
2004 Members’ Anthology)


     


 


 


warm enough 
to linger at the river 
year-end bonus
                        


 





white to pink– 
who painted the clouds while 
we shopped for wine?
                                  Legal Studies Forum XXIX:1 (2005) 


 


 


 


through sleepy eyes: 
a crow glides past the window
then the hawk
                            [12-25-03]


 


 


 







lips and tongues
our traditional Christmas
papercuts
                            [12-20-03]


 


 



 


married ten years
nobody looks for
the mistletoe

                       [12-20-03]


 


 


 



blue sky
behind bare branches
year-end bonus 
                                   Legal Studies Forum XXIX:1 (2005) 


 







a perfect cloud floats past
the window-framed sky –


typing stops
                                      [12/12/03]


 


 




alone -
hugging 
warm laundry


                [06/12/04, The Heron's Nest (March, 2005)]





 


 


 



first glimpse
of the just-lighted tree
full moon parts the clouds
                                                         [12/08/03]


 


 


 






poking a cold nose
from under warm blankets
the squirrel and I
                                   [12/05/03]

 

 



 

 


scraping the windshield
first snowfall without you
and our garage
                                        [12/02/03] 


 

 

crows flip

 

 

June 26, 2005

a sleepy sunday (feels good)

Filed under: pre-06-2006 — David Giacalone @ 9:15 pm

- no news, no views today; just a haiku picnic -


 


record high—
this heat
even in my toothpaste

 

 

 

 

 






my face dripping…
the floppy-foot clown’s
plastic flower




thermometer hot


summer heat—
two squirrels
meet on a wire


 


Michael Dylan Welch  from terebess asia online





 


- how about a Sunday drive (with the a/c on)?

 

 








waiting to see
the odometer’s big change . . .
missed it!


 


 


 


Farm country back road:
just like them i lift one finger
from the steering wheel


 


 


 







twilight
the only car ahead
turns off


 

Tom Clausen  from terebess asia online

 

 

 


 





  • by dagosan                                               










home alone

the neighbor’s hound pup

howls and howls

 

[June 26, 2005]

potluck


Inadvertent Searchee Update: Someone queried  wife+rump> at Google,

and we came in at #6 out of 148,000 results (an odd collection, indeed).

To celebrate, we repeat the poem that triggered the result; it’s one of our

favorite senryu from one of our favorite haijin:

 




family picnic

the new wife’s rump

bigger than mine

 

                                           Roberta Beary 

                                              favorite senryu award, modern haiku 34-3

 

 

swing set Swing over to Kevin Heller’s place for Blawg Review #12.

 

 

seminal cases can shape a lawyer’s psyche

Filed under: pre-06-2006 — David Giacalone @ 12:58 am

While others have been handing off reading sticks and music batons throughout the

blawgisphere, I’ve been wanting to ask fellow lawyers a different question:


scales rich poor  Was there a particular case – a Seminal Opinion — that strongly

influenced your attitude toward the legal system or the legal profession,

or that helped you decide the role you wanted to play within the

profession?  Did one majority or dissenting opinion plant seeds from

which your lawyer psyche grew?  If so, what was it and what difference

has it made in your professional goals or practice? 

That’s the Seminal Opinion Baton, and I bet a very large percentage of lawyers,

professors and judges have a SOB Story to tell.  Judging from its seismic readings

and aftershocks, Kelo v. City of New London seems very likely to be a seminal

case for many JDs2B, law students, or young lawyers in their formative years —

creating an army of law school graduates mobilized to protect property rights and

more suspicious than ever of both majority encroachment on the rights of the

minority and the influence of the wealthy over elected officials.   

 

Until a few weeks ago, I might very well said “no, there wasn’t,” if someone passed

the SOB to me.  But, while looking into the issue of lawyer advertising earlier this 

month, I saw a short excerpt from The Betrayed Profession (by Sol Linowitz, with Martin

Mayer, 1994, at 146 – 148) that linked the failure of the legal profession to serve middle-

class Americans with “two Supreme Court decisions that turned the bar upside down.”

Immediately, I recognized the roots of my most basic attitudes toward the legal profession

and my chosen path within it.   

                                                                                                                no solit neg

 

The first case was Goldfarb v. Virginia State Bar, 421 U.S. 773, issued on June 16,

1975, right after my 2L year was completed.  The case applied the antitrust laws

for the very first time to the legal profession — finding that a minimum-fee schedule,

published by the Fairfax County Bar Association and enforced by the State Bar,

violated Section 1 of the Sherman Act.  Although Goldfarb alone would surely have

sufficed in shaping my lawyer’s psyche, the mold was set for good in June of 1977 –

a few months before I became a staff attorney in the FTC’s Bureau of Competition —

when the Court issued Bates v. State Bar of Arizona, 433 U.S. 350 (1977).  The

Bates decision held that First Amendment protection for commercial speech that is

neither false nor deceptive extends to lawyer advertising — including the truthful claims

by respondents of announcing “legal services as very reasonable rates.”



tiny check Of course, a seminal case must resonate with

the individual’s own basic character.  For many

people, membership in any group (family, church,

profession, etc.) means defending it against all

outside attack.  For me, membership has always

meant an insistence that the group live up to its

responsibilities and its stated goals (and claims)

– that it be “the best that it could be.”

Looking now at the unanimous (8 – 0) Goldfarb decision and both the majority and

dissenting opinions in Bates, I see themes that have been at the heart of my legal

career:


- the legal profession claiming that it was not a “trade” or “commerce”

and that competition would destroy its image and integrity, while the

Court pointed out that lawyers have a major impact on commerce

and are clearly engaged in making a living.

 

– the profession insisting that “dignity” and “self-image” were essential  

for professionalism, while the Court insisted that public service is the

core of the legal profession and competition seems more likely to help

than to hinder meeting our obligation to serve and reducing the public’s

skepticism about the profession

 

– the profession claiming it was protecting consumers through efforts    “shark tiny gray”

that keep fees high, and through self-serving bans on activity that would

spur innovation and price competition (e.g., UPL as “consumer protection”)

 

- a blunderbuss approach by the Bar that insisted that no advertising

could be permitted (accepted by Justice Rehnquist, who would give

no Commercial Speech protection to lawyers and other learned

professions)

Looking at the amici in Bates and Goldfarb, Young Giacalone could see that the

legal establishment strongly opposed an end to fee schedules, any imposition

of the antitrust laws, and the acceptance of advertising — and they were joined by

other “learned” professions.  Even after minimum fee schedules were forbidden,

they fought against advertising that let consumers know lower-priced options

existed.  [My decision to write the total-grade paper in my class on Professional

Responsibility on the topic of lawyer advertising suggests how important the issue

was for me as a law student.  My decision to boldly support lawyer advertising,

despite my professor's contrary position, further shows a willingness to accept the

consequences of rubbing the legal profession the wrong way.  As I've mentioned

here before, the result was my worse law school grade.  You'd think I would have

learned better by now.]

 

scales rich poor neg  How can the influence of Bates and Goldfarb be seen over the past

30 years of my professional life?


- I spent 12 years working on competition and regulatory issues,

at the FTC, mostly focused on the learned professions — especially

on the use of ethics rules to stymie competition.  “Demystifying”

the legal and medical professions, and replacing legalese with Plain

English were other related, ongoing interests.

 

- “Competition Policy” has also been at the center of my work — the

structuring of regulatory schemes so as to preserve the forces of competition,

while overcoming market failures and preventing deceptive and unfair practices

that hurt consumers.

 

- I have been very suspicious of (1) any claim that having less information,

choice or price competition somehow benefits consumers; (2) any

pricing mechanism — such as contingency fees or the Goldfarb

fee (which was based on a percentage of the transaction involved) —

that does not take into account the actual amount of work done by

the lawyer; (3) maximum fee rules or guidelines that become the de

facto floor (see Maricopa), such as the one-third standard contingency

fee; and (4) any attempt to arrogate to lawyers rather than clients the

profits derived from improved technology and efficiency.

 

“shark tiny”  A basic tenet for me: Bar Association = Guild (“we” come first, not

the client) [see, e.g., Bar & Guild]

 

- In my retirement, I have used this website to keep a wary eye on bar

activity that appears to raise price in the name of consumer protection,

and have insisted that professionalism is not about image and dignity,

but must instead be focused on service and integrity.


update (July 28, 2005): For two years, I’ve been trying to convince

Massachusetts “bar advocates” (assigned counsel for the indigent in

criminal cases) that they have no right to violate the antitrust laws and

their ethical duties to the judicial system by engaging in coordinated,

coercive boycotts aimed at increasing their fee levels.


- My doubts about the willingness of the legal profession to serve the 70%

of Americans who are neither rich nor poor, despite technological advances

that should make it much easier to achieve access for all at affordable prices,

has led me to fight for improved Self Help resources for all American consumers

of legal services. (see our Self-Help/Pro Se page)

So, what about you?  Was there a Seminal Opinion that touched off or inspired your

legal career?   After complaining recently about being a stickee, I’m going to make taking

up this Baton voluntary.   Nevertheless, I hope they’ll be a lot of uncoerced, but insightful,

answers.













 

 

in the owl’s opinion
every day
is long


 






useless me
useless weeds…
the cuckoo’s opinion

 


ISSA                                                                                                   law books

translated by David G. Lanoue                                                              

June 25, 2005

yes, it’s hot enough for me

Filed under: pre-06-2006 — David Giacalone @ 8:37 pm


 

midday heat

one petal of the red poppy

sways

 

 

 

 

 





another hot day

an old man scratches

his lottery ticket

 

 

 

 

 

 









drinking alone

bottles of liquor

aligned by hue

 

 


“midday heat” from “Summerday, Puget Sound,” a haiku sequence

“another hot day”  – pegging the wind; Haiku Canada Newsletter XV:3

“drinking alone” – frogpond XXVIII: 2 (2005)

 





  • by dagosan                                               







95 degrees

the refrigerator

sweats more, too

 

 

 

 

 



perspiration rolls

across flat abs –

her innie

 

 

[June 25, 2005]

 

BankRobbers   potluck



Hot Chicks?  A string of bank robberies around Schenectady, NY, were 

apparently solved yesterday, when a bank employee followed two culprits

and directed police to the getaway car.  Not big news, except that the suspects

are a pair of women, Donna Rogers, 55, and Fern Kathleen Sherman, 57, who

are pictured above.   See AP/NBC3 and Albany Times Union,  June 25, 2005.

Given the location of the apartment they shared in downtown Schenectady,

County Jail might be a bit cooler on this scorcher (95 degrees, “feels like 106″)




  • Although Prof. Yabut is always on the lookout for a woman in an

    interesting, challenging occupation, for a possible long-term

    relationship, he’s going to pass on this pair, despite their living

    so conveniently nearby.




  • The weather is keeping us indoors today, so we’re missing the Festa

    Italiana in Schenectady’s Central Park.  Take a virtual tour here.



                                                                                                                                               femaleSym “$Key Small” femaleSym

June 24, 2005

local schmocal: kelo

Filed under: Haiku or Senryu,viewpoint — David Giacalone @ 2:25 pm
ooh neg  potluck
Like webloggers and journalists across the entire spectrum of American politics and political philosophy (from TalkLeft and Pattis, to Bainbridge and Sandefur; but see NYT editorial) the lawyer in me (especially as an advocate for personal and consumer rights, and the economically weak) believes Kelo v. City of New London was wrongly decided.
.
Having lived in dying and fiscally desperate NE industrial cities, I admit that another part of me wonders if there, in fact, shouldn’t be a way for major development to go forward when there are a handful or fewer of holdouts, who refuse to sell and are blocking major projects.  (Perhaps there should be compensation for emotional damages for the taking of a homestead, in addition to Fair Market Value, with a jury deciding and the new private owner responsible for the payment.)

.

ooh I went to bed last night thinking that our political system holds enough checks and balances to keep this Kelo power from being abused.  I woke up this morning, however, remembering my prior postings on the folly of economic development plans in the real world.  For example schmittle Italy.  And, I recalled shenanighans that seem to be part of most “planning” and “development” decisions wherever I look (reinforced by tales from my brother, whose legal practice focuses on representing homeowners in zoning/development disputes).  So, I’m going to repeat the opening sentences from my local schmocal essay, and hope that citizens will vigilantly monitor their local officials – ever skeptical about the relationship of local pols and developers.

 

One very good thing about our “let fifty labs operate” federalist
system is that states get to see what works in other places and 
take advantage of the experience.   One very strange part of the
system, however, is that states never seem to learn from the mistakes
that happen elsewhere.   And, one very weak part of the system is
that the labs are operated by local governments.
.
SoldSignN 
.
Some political theorists and ideologues wax rhapsodic about
decisions being made and problems being solved at the level closest to the
people.   But, when I think “local government” I tend to think — based mostly
on the seven or eight cities of various sizes I’ve lived in over the past half
century — “un-professional,” “sinecures,” “patronage,” “pay-back,” and
“party hacks.”  I do not think “knowledgeable people likely to solve
complicated problems.” 


Call me a cynic, but when it comes to economic development, I’m more likely to think “the fix is in.”   Hold on to your wallets and your deeds. 
  • Sometimes, George Will gets it exactly right (Wash. Post, June 24, 2005): “[I]n the debate about the proper role of the judiciary in American democracy, conservatives who dogmatically preach a populist creed of deference to majoritarianism will thereby abandon, or at least radically restrict, the judiciary’s indispensable role in limiting government.”
  • Over at TechCentralStation, Steve Bainbridge has a good analysis of Kelo. We part company, however, when Prof. B. says that the votes of Kennedy and Souter prove “once again just how essential it is that Bush 43 pick somebody reliably — and permanently — conservative when there’s an
    opening.” (emphasis added)  If someone tells me that their political or judicial philosphy will never change, no matter how much experience shows that his or her perspective or ideology simply does not work in practice, or does not serve justice, the Constitution, or the public interest in particular
    circumstances, my reaction is “then, you do not have a judicial temperament.”
    .
  • Wisdom often (although certainly not always) comes with experience. See our post-chart “political maturation after age 30.


trailerG update (July 5, 2005):  Don’t miss John Tierney’s NYT op/ed piece, “Your Land is My Land,” asking the next Supreme Court nominee to tour Pittsburgh to see the results of decades of eminent domain aimed at creating “better uses.”  (July 5, 2005)
 * * * * *

 

      empty house
some nameless plants
      have moved i
    a blue ceiling
where the roof-beams
    have collapsed
SoldSignN
family album–
                   the black and white
                   of my youth
         sharp wind

the metal gate bangs shut
          bangs shut
    flag up
on the mailbox
 mockingbird
 .
except: “family album” from pegging the wind
moving day –
the house and kids
left behind
winding road –
under the influence
of a strawberry moon
[June 24, 2005]

 

 

June 23, 2005

school’s out!!

Filed under: pre-06-2006 — David Giacalone @ 4:37 pm

Summer vacation starts today for the public schools of Schenectady County, NY. 

The daily routines of many of our inhabitants will be changing — a great opportunity

for thinking about what we do, why, and how, in our everyday lives.

 

Before attempting such deep thoughts, though, I suggest experiencing a few

haiku from teacher-poet-publisher Randy Brooks’ volume School’s Out:

 

 

 


schoool’s out–

a boy follows his dog

into the woods

 

 

 

 

 






last day of school

     the crack of a baseball bat

          outside the open window

 

 

 

 

 

 

 

new grave . . .

      a graduation tassel

      hangs from the stone

 


 

 rollercoaster  here’s one I wish I had found for my Father’s Day post

a few days ago:

 

 





the pinwheel stops

     grandpa catches

     his breath

 


Randy Brooks, from School’s Out (Press Here, 1999) 

 

 




  • by dagosan                                               










stuck behind a school bus

two yellow jackets

hitch a ride

 

                               [June 23, 2005]  

 


potLadle  potluck


tiny check School may be out, but Ms. Elefant, the schoolmarm from MyShingle

has given me a bunch of homework – the @#&%!! Music Baton.   As

happened when I was struck with the Book Stick (by another so-called

friend), I must give some thought to this assignment, if it’s to be worthwhile

for myself or my readers.  Meanwhile, nobody better try smacking me with

a Food Wand, Sexual Fantasies Staff, or TV Antenna. 

 

 

tiny check  After all these years following Andrew Capoccia‘s Debt Reduction scam,

I had to click on the link that arrived today via email spam from No Debts.  These guys

actually tell you they’re located in Latvia (with a locator map).  They promise to

make you debt-free in 2 to 3 business days [more likely, liquid-asset free].  Their

math and their English are not great.  For example, they tout that you’ll only

“Pay only 85% – 90% of your total debt!”  Although “All costs are included in

the program,” you’re never told what the costs will be.  I sure hope this is a fun

hoax, as I would hate to think that there are consumers who would fall for it. 

 

waspG  The New York Times editors are right: “A Pentagon inquiry’s finding of no

overt religious discrimination at the Air Force Academy strains credibility.”   The

notion that there’s no problem, if the preachers and doomsayers are “well-intended”

is scary indeed.  (I sure hope those who are trying to save my heathen soul have good

intentions.) ["Obfuscating Intolerance,” and “Air Force Staff found promoting religion,”

June 23, 2005)

 

                                                                                                                                                                                          

 

                                                                                                                                                    

June 22, 2005

straight rows of weeds

Filed under: pre-06-2006 — David Giacalone @ 4:47 pm



On the smudge
left by the window cleaner
sunset lingers



 


 










 

Closed army base:
the parade ground with straight rows
of weeds

 

 

 

 

 

 

After the last set
the piano keys glow–
solo moon




 

rain flower neg  George Swede from Simply Haiku (Sept. 2003, I:3) 

 

 

 







  • by dagosan                                               









too much tongue

the taste

of the popsicle stick

 

 

 

 

 

 

one-minute

gully washer –

the car’s still dirty

 

 

                               [June 22, 2005]  

 


 potluck


tiny check Evan Schaeffer recently asked Christopher King, Esq., to start his own honest flip

weblog (we concurred).  King did, and Evan had a follow-up post today

after being rather surprised to learn, via King’s 1st Am. weblog, that King

has been indicted by a New Hampshire grand jury for attempted

extortion.  The Nashua Telegraph says that Mr. King (who lost his bar

license in Ohio and is not a member of any bar) “was indicted for

trying to extort the town of Jaffrey by falsely claiming he represented

the NAACP and demanding $65,000 restitution for the arrest of a

black man [Willie Toney].” (June 22, 2005) King allegedly wanted

15% of Toney’s award.   Wow.  Mr. King went from a Comment-

Spamming annoyance to an indicted ex-lawyer in a little over a week.

Talk about instant eenfamy.



  • Let me suggest one line of defense for Chris King:  No card-carrying

    lawyer worth his ATLA membership fee would ever charge a mere 15%. 

    Thus, (allegedly) asking far less than 1/3rd is prima facie proof King was 

    not holding himself out to be a lawyer.

 

tiny check  The next time your local weather forecaster uses obscure jargon,

head over to The Weather Channel’s Weather Glossary. (I used

it today to make sure my understanding of “gully washer” was

correct.)

 

honest  If you haven’t seen David Weinberger‘s apologia for why he’s “not

keeping up with your blog,” check it out.  You will surely relate. There are

just too many weblogs for anyone with a life (much less a job and family) to

stay abreast.  And, I think RSS aggregator subscriptions makes the task harder. 

Of course, that means we can’t count on other webloggers to stay on top of the

blawgosphere either.  Yes, easy access to information quickly becomes too much

access.

 

 

tiny check Bob Ambrogi does a very good job today, analyzing the debate between the

cheerleaders of weblog-marketing by law firms and “blogging’s contrarians.”  Caution

and restraint are called for.

 













potLadle

Older Posts »

Powered by WordPress