Eleventh Circuit agrees to an expedited briefing of the ObamaCare challenge

The briefing will begin April 4 and will be completed on May 25. That schedule could still allow for an en banc oral argument on June 6, as the challengers requested.
————
In a move to speed the constitutional dispute over health care on to the Supreme Court sooner, challengers to the new federal law on Thursday night asked the Eleventh Circuit Court to put the case promptly before ten-judge, en banc Circuit Court, and to do so at a hearing in June. If the Circuit Court agrees, that could make this case — involving 26 states and leading to a judge’s decision to nullify the entire new law — the first one likely to be heard by the Supreme Court. (ht Scotusblog)

On this day in 1963, Ernesto Miranda was arrested in Phoenix, but gets off on a penumbral emanation

On this day in 1963, Ernesto Miranda was arrested in Phoenix, but gets off on a penumbral emanation. As Ed Whelan notes at NRO, the initial Miranda decision was 5-4, over a vigorous dissent by Justice Harlan, who pointed out that the warnings are not mandated by the Constitution's text. When the Court came to re-examine Miranda in the Dickerson case, the majority conceded that the use at trial of a voluntary confession, in the absence of Miranda warnings, does not violate the Constitution, but supported the warnings as a "prophylactic" device. Scalia rightly blasted the majority for assuming an "immense and frightening anti-democratic power" -- not merely to enforce the Constitution, but to impose prophylactic policies that can void the laws of elected state and federal legislators.

The Death Penalty

Illinois just got rid of it. Maybe the right policy choice, but is the DP unconstitutional? The 5th amdt seems to assume govt can take your "life" if due process is observed.

Podcast: Raiders of the Lost iPhone!

Guy walks into a bar -- stop me if you've heard this one before -- carrying an experimental fourth-generation prototype iPhone. After heavy drinking, college student ends up with the phone and sells it to Gizmodo. Have any laws been violated? Find out on my Legal Lad podcast, where I'm doing two full episodes on the legal fallout of the lost iPhone saga!

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Podcast: Is Public Breastfeeding Legal?

This week, my Legal Lad podcast looks at a woman's right to breastfeed in public. Turns out the law differs radically from state to state. And -- in honor of World Breastfeeding Week -- my colleagues at Quick and Dirty Tips have posted their own podcasts looking at other aspects of breastfeeding -- the techniques (from Mighty Mommy), the etiquette (Modern Manners Guy), and the latest medical research (House Call Doctor). Check it out on iTunes -- if you like it, consider writing a review...or even subscribing to the podcast (it's free!). Or listen at the Legal Lad site, right here.

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Podcast: Embezzlement

What to do when your business partner is dipping into the till? In my Legal Lad podcast, I explain the law of embezzlement -- which applies to skimmers and scammers, even if they secretly hope to repay their employers someday. Check it out on iTunes -- if you like it, consider writing a review...or even subscribing to the podcast (it's free!). Or listen at the Legal Lad site, right here.

More links to subscribe to Legal Lad:
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Deciphering the Sotomayor Hearings

How can you spot the wise Latina? She'll be speaking Latin, of course. Just two days into the Sotomayor hearings, the nominee has dazzled the crowd with stare decisis, sui generis, and pro bono. In case you're having trouble following all this, a number of papers have published legalese glossaries for non-lawyers, here and here.

Oh Canada

Ever wonder what Law & Order would look like North of the border? In my Legal Lad podcast, I take a look at what makes Canadian law different from US law. Check it out on iTunes -- if you like it, consider writing a review...or even subscribing to the podcast (it's free!). Or listen at the Legal Lad site, right here.

My piece in the New York Times

Last week, the New York Times ran my Op-ed piece about the Declaration of Independence. The Founders borrowed liberally (to put it mildly) from the language of British law when drafting the Declaration. What makes the Declaration great is that the Founders turned what might have been a provincial legal document into a universal declaration of rights. And that's something to celebrate!

Poetic Justice

My fellow Brooklynite, Russell Bittner, tells me that he is working "on a series of poems for snarky children that I intend to market to the children of lawyers -- and, by extension, to those children's parents, many of whom I assume to be equally as snarky."

"Snarky," according to the OED, means "irritable, short tempered," from "snark," meaning either to snort or to nag.

And so here, for all you kids out there, is one of Russell's creations -- Nolens Volens (willing or not).

Nolens Volens

My friend Nolens – just like me –
goes to bed unwillingly.
Nolens thinks that sleep is rot;
Mom, however, thinks it’s not.

“What the heck,” – I hear Nol say –
“sleeping leads to tooth decay!”
Nolens has a point, I think;
Mom, however, doesn’t blink.

“Sleep’s not right for guys like us –
guys who spit and curse and cuss!”
Nol – it’s clear – loves sacred texts;
Mom politely genuflects.

Then, as I’m about to swear,
I see Nolens grab his bear,
hibernate, and take a chair
high up where there’s no there there.

Nolens’s fingers, once asleep,
leave off fleecing Bo Peep’s sheep –
wherein I discern the rub:
Nol has fallen for the cub.

I next grumble fitfully
as the clock strikes half past three,
sinking me with each dull clink –
Mom, however, doesn’t shrink.

She, instead, has darker plans:
“Afternoons,” she countermands,
“aren’t – like mornings – made for naps;
pillows take the place of laps.”

Volens now unmasks my frown
as Mom gently swings me down,
sending me between the sheets
into rapture that entreats

me to ask for one more thing
to divest of sleep its sting:
that while sucking on my thumb,
I can call old Nol my ‘chum.’

Word of the Week

Replevin

An action to recover possession of tangible personal property wrongfully taken or withheld by another. In ancient usage, it could also refer to an action to recover a person; that is, by bailing him out of jail. It comes from the Old French replevir. The verb form is replevy, which is often used in its polite form, "replevy, s'il vous plaît."

Plain Language Around the World

There's been a recent outbreak of common sense throughout the English-speaking world. Herewith (!), a recap of some current plain language initiatives.

• In Newfoundland, the Public Legal Information Association is publishing booklets to provide "legal information without the legalese." (Thanks to Voice of the Common Man, Newfoundland).


• Canadians are also leading the charge against impenetrable credit card applications. The Toronto Star reports that the Financial Consumer Agency of Canada and MasterCard Canada have unveiled a model plain language application form.


• In Australia, an entrepeneur has launched a website with plain language advice and forms for separated parents to create custody plans without having to wade through the swamps of legalese. (Thanks to the Daily Liberal).


• Meanwhile, here in the US of A, Tech Journal South has published a terrific article on how to "remove legalese from your writing." The author, a small business consultant, has lots of sensible advice, including such fundamental (and often overlooked) points as keeping your audience in mind.

H2 -- oh?

We don't usually think of "water" as a legal term, but the definition of water is now a controversial item among environmentalists. According to a report in the Toledo Blade, a recently-enacted interstate compact regarding use of the Great Lakes defines water as a "product," which has some people concerned that this will allow multinationals to demand access to the Lakes under international trade laws.

Word of the Week

Lemon Law

A statute that entitles the purchaser of a car that turns out to have substantial defects to return it for a refund or replacement.

For the origin of this curious term, check out this post on the Lemon Justice site. Apparently, the use of "lemon" to describe sub-standard products goes back to the early 1900's. Read more, here.

Golden Gobbledygook Deadline Extended!

By popular demand, we've extended the deadline for submitting entries to the Second Annual Golden Gobbledygook Award to October 28th!

Yes, Golden Gobbledygook -- the coveted prize for the best example of bad legalese. You can post your entry right here at the blog (as a comment to this post), or just send the worst example of legalese you can lay your hands on to POFP (adamjfreedman@yahoo.com).

The top three winners will get a boxed set (without the box) of the new paperback edition of my book The Party of the First Part, together with the Vocabula Review's new essay collection (a must for all language lovers): Vocabula Bound 2: Our Wresting, Writhing Tongue. Our distinguished panel of judges will announce the winners here at the POFP blog!

Word of the Week

Golden Parachute

An "excessive" severance payment to an executive. Recent coverage of the Economic Stabilization Act of 2008 (aka the "bailout bill") mentioned that Congress would restrict the "golden parachutes" available to companies that sold troubled assets to the Treasury. Many assumed that the media were just speaking informally, but in fact the "Golden Parachute Rule" is enshrined in the Tax Code -- imposing a 20% excise tax (on top of income tax) on any severance payment that is more than 300% of the executive's recent average annual pay.

Legal Brainteaser: What's a Country?

Sure, you're a little bit country. But what if your country isn't really a "country"?

This question -- or something like it -- recently gripped the Ninth Circuit when reviewing a deportation order against Nikolay Dzyuba. The Bureau of Immigration Appeals had ordered Dzyuba deported to the Ukraine, which they considered to the be the "country" from which he had entered the US back in 1991. The problem is that when Dzyuba entered the US, on July 5, 1991, the Ukraine was still part of the Soviet Union. It did not gain its independence until August 24, 1991 -- seven weeks after Dzyuba's entry.

This argument sent the judges scrambling for their copy of Webster's Third New International Dictionary but that Dictionary says that "country" can be either an independent political entity or a geographic region. As is sadly typical in modern "descriptivist" dictionaries, Webster's indicates no preference for either meaning. The question ultimately proved too daunting for the Circuit -- they kicked the case back to the Bureau of Immigration Appeals to decide whether pre-independence Ukraine was a "country."

Any bets on what they'll decide?

Straight Talk on Gobbledygook -- and Reform

Cheryl Stephens -- plain language guru -- has cleared up the original meaning of the word "gobbledygook."

The term was coined by Henry Maverick, but as Stephens points out:

Maverick said the bureaucratic style of writing reminded him of the turkeys who strutted around the yard making a lot of noise that ended in a pile of sputum on the ground. That sputum was the gobble-de-gook. Not the strut nor the song-- the spit and pus!

For more of Cheryl's wisdom, check out her terrific blog, Building Rapport. In particular, you'll see information about the Plain Language in Government Communications Act now pending in Congress. To heck with the bailout; urge your congressman to support that.

Word of the Week

Ferae Naturae

Latin (literally, "of a wild nature"); used as both a noun and an adjective to refer to animals of a sort that are not normally domesticated. Under traditional common law rules, the owner of an animal ferae naturae was strictly liable for any injuries caused by the animal.

The Second Annual Golden Gobbledygook Award!

Just what you've all been waiting for -- a Prize for the best example of bad legalese.

The term "gobbledygook" was coined by a Texas congressman, Henry Maverick. He meant for the word to evoke the sound that gobbling turkeys make. The word was meant as an indictment of confusing legalese and officialese.

But people have come to take legalese in stride; to which POFP says "Enough!

Send the worst example of legalese you can lay your hands on to POFP (adamjfreedman@yahoo.com) -- and you can be the proud winner of the Golden Gobbledygook Award. The top three winners will get a boxed set (without the box) of the new paperback edition of my book The Party of the First Part, together with the Vocabula Review's new essay collection (a must for all language lovers): Vocabula Bound 2: Our Wresting, Writhing Tongue. Winners will be announced October 14th.

Looking for inspiration? Check out the Legalese Hall of Shame at POFP's website. (The two recent entries listed below will be considered for the prize... but the competition is wide open!).