An Alabama judge has emblazoned his robe with the 10 Commandments.

Further comment unnecessary.

So… was anyone else perplexed by Judge Posner’s post on the new Becker / Posner blog? Posner attempts (or at least I thought he was) to do a cost-benefit analysis on preemptive war, but then he quickly veers into hypothetical math land…

“Suppose there is a probability of .5 that the adversary will attack at some future time, when he has completed a military build up, that the attack will, if resisted with only the victim’s current strength, inflict a cost on the victim of 100, so that the expected cost of the attack is 50 (100 x .5), but that the expected cost can be reduced to 20 if the victim incurs additional defense costs of 15. Suppose further that at an additional cost of only 5, the victim can by a preventive strike today eliminate all possibility of the future attack. Since 5 is less than 35 (the sum of injury and defensive costs if the future enemy attack is not prevented), the preventive war is cost-justified.”

Judge, I know how to do the math… what I’d like to see are real numbers or an admission that fleshing them out is elusive (impossible?). What I need is honest talk about the fact that the probability of attack from Iraq was probably closer to zero.

I also found the following statement interesting:

If you know with certainty that you are about to be attacked, you are justified in trying to get in the first blow. Indeed, the essence of self-defense is striking the first blow against your assailant.

Really Judge? I suppose it all hinges on what the definition of certainty is. But something tells me if I ever find myself in the unfortunate position of being in front of the court and argue that I was just certain he was gonna kill me, my argument might fall on deaf ears unless I have some pretty airtight corroborating evidence.

While Posner oddly skips the current conflict in Iraq, the fact of the matter is, the Administration lacked certainty. Whether they could determine a probability is another thing, but as we know, most people are uncomfortable with probabilities. So the Administration offered “evidence” to support their claims of certainty. Evidence is something the public can handle. Probabilities are not. There is a reason that attorneys do not get up in front of the jury and say Ladies and gentleman, a cost benefit analysis shows that the cost of saving one more life is outweighed by the benefits of widespread availability of this vehicle. That may be true, but no jury is going to stand for it.

Relying on an earlier post, on Thursday Mike O plausibly argued that he should now be considered “bilingual.” Cf. “Speaking a Different Language,” Thursday Dec 2 (2004). I just want to point out that, in some rare instances, judges can write with some style. I like this offering from Kinney Shoe: “This corporation was no more than a shell – a transparent shell. When nothing is invested in the corporation, the corporation provides no protection to its owner; nothing in, nothing out, no protection.”< ?xml:namespace prefix = o /> Not hilarious, of course, but when we’re talking about “respecting the corporate form,” it’s hard to be. Anyway, it brightened up my outline.

I just want to archive this quote for future reference. It is from Jack Balkin’s article entitled, “What Brown Teaches Us About Constitutional Theory” in the University of Virginia Law Review.

“Judges are sort of like place kickers in football. Most place kickers are pretty bad at making an open-field tackle to stop a speedy running back returning a kickoff. But place kickers can help pile on after the other players have tackled or slowed down a runner. That is sometimes how I imagine courts and their relationship to social change: They see the running back lying on the ground, groaning under the weight of a huge pile of linebackers. The judges say to themselves, “It’s time for us to do some justice!” and they throw themselves on the pile.”

This is a small excerpt from the article I mentioned below. I understand that it isn’t fair to simplify a decision in this regard. But it made me laugh (in disbelief) because it sounds so off the wall.

This year, the court heard the case of a man with a court appearance in rural Tennessee who was forced to either crawl out of his wheelchair and up to the second floor or be carried up by court officers he worried would drop him. The man crawled up once, but when he refused to do it again, he was arrested. The court ruled that Tennessee violated the Americans With Disabilities Act by not providing an accessible courtroom, but Justices Scalia and Thomas said it didn’t have to.

Can you imagine this poor guy crawling up the stairs…?

This past weekend, I spent an amazing two days in the city of brotherly love attending a program sponsored by the Just The Beginning Foundation. JTBF invited all of the African-American Article Three judges in the country to attend a weekend of panels on the Brown decision and its aftermath.

The first panel I attended was entitled, Brown and the Integration of the Federal Judiciary: A Tribute to Houston, Hastie and Marshall. The panel was legendary. Among the most extraordinary members were:

Bill Coleman who single handedly achieved several of the “firsts” for African-American lawyers. He was the first African American on the Board of Editors for the Harvard Law Review. He was the first African-American Supreme Court Clerk, and he integrated the New York firm of Paul, Weiss, Rifkind, Wharton & Garrison. While at Paul Weiss he was recruited by Thurgood Marshall to help the NAACP Legal Defense Fund prepare for the cases that would eventually lead to Brown.

The Honorable Robert Carter, now a Senior District Judge (very senior… he is 91) in the S.D.N.Y., was one of the attorneys that actually argued the Brown decision in front of the Supreme Court.

The Honorable Constance Baker Motley (S.D.N.Y.), the first black woman to serve on the federal judiciary was supposed to be on the panel but could not make for health reasons.

The panel was moderated by the Honorable Nathaniel R. Jones who recently retired form the 6th circuit.

The entire weekend was mind blowing, not only because of the giants who were there, but because I was faced squarely with the debt of gratitude I owe them all for, literally, giving me the chance to follow my dreams (or whims) virtually unencumbered.

William H. Hastie, Charles Hamilton Houston, Thurgood Marshall, Bob Carter, Bill Coleman, Constance Baker Motley, Spottswood Robinson, Jack Greenberg, Louis Redding, Lou Pollock (just to name a few)…

Thank you. Thank you for fighting the good fight. Thank you for not giving up. I will not waste what I have been given.

Several folks this past weekend quoted various parts of this passage from a speech given by Justice Marshall just prior to his retirement in 1992. I thought it worth capturing here:

“The legal system can force open doors, and sometimes-even knock down walls, but it cannot build bridges. That job belongs to you and me. The country can’t do it. Afro and White, rich and poor, educated and illiterate, our fates are bound together. We can run from each other, but we cannot escape each other. We will only attain freedom if we learn to appreciate what is different, and muster the courage to discover what is fundamentally the same. America’s diversity offers so much richness and opportunity. Take a chance, won’t you? Knock down the fences, which divide. Tear apart the walls that imprison you. Reach out. Freedom lies just on the other side.”

I didn’t know that the question of whether or not African-Americans are citizens of the United States was back on the table as a campaign issue in this election.

Asked what type of judge he would appoint to the Supreme Court, the President assured the Nation that he would not pick a judge that allows personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution. As an example of the types of judges he wouldn’t appoint he offered the following:

“Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.”

In the next debate, the moderator better ask about women’s suffrage just to be safe. We need to know where the President stands on this highly controversial issue.

I wish we could talk as plainly and honestly today about the way things really work as CJ Marshall did in this excerpt from Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543.

“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.”

Update: I suppose I should clarify. I am not saying that I agree with CJ Marshall’s argument (and who’s kidding, Marshall didn’t agree with his own argument in this case). But I do appreciate the fact that, faced with a shaky justification for why America had a property right to lands already inhabited by Native Americans, CJ basically said:

Look, I ain’t sayin’ its right…. per se… but our whole existence as a nation is rooted in the land we took from these cats. So… yeah…. ummm… things are gonna fall apart if we fail to keep the status quo here…. So… Yeah… Affirmed… With Costs.

Apparently, a guy, who used to bully Marshall Mathers when he was a kid, filed a defamation suit against Eminem after Eminem wrote the kid into his lyrics. The defamation suit against Mr. Mathers was dropped today. The judge was feeling the beat, and decided to drop a verse. In one of the footnotes to her opinion, Judge Servitto rapped in part:

Mr. Bailey complains that his rep is trash
so he’s seeking compensation in the form of cash
Bailey thinks he’s entitled to some monetary gain
Because Eminem used his name in vain
The lyrics are stories no one would take as fact
they’re an exaggeration of a childish act
It is therefore this Court’s ultimate position
that Eminem is entitled to summary disposition