BeldarBlog

Justice Scalia's refusal to recuse

Justice Scalia's twenty-one page memorandum opinion explaining his refusal to recuse himself in the Judicial Watch/VPOTUS case is comprehensive, persuasive, and masterful. The money quote (so to speak; emphasis in original):

The question, simply put, is whether someone who thought I could decide the case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a Government plane. If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.

The single part that I disagree with, however, was when he suggested (at pp. 3-4) that if he were a mere circuit judge, he might have gone along with the recusal motion because his place would promptly have been taken by another circuit judge, and there wouldn't have been the same possibly outcome-determinative change in the nature of the tribunal deciding the case.

He's right, of course, that circuit judges are more numerous, and when one takes himself off a particular case, he or she usually can be easily enough replaced by another. Indeed, the courts of appeals — especially those that are overloaded and backlogged — frequently invite a district judge to join a three-judge oral argument panel "by designation" in order to stretch their manpower resources.

But even circuit judges have, I believe, an institutional duty to hear the cases to which they're assigned in the ordinary course, and to avoid giving litigants a veto — which would be the effective result if judges always "resolve[d] any doubts in favor of recusal."

When I clerked during the last days of the "old Fifth Circuit" twenty-plus years ago, I assisted my judge in writting a dissenting opinion for the minority of the then-twenty-five judge en banc court. A thirteen-judge majority voted to reverse the district court decision, but my judge's dissent was concurred in by eleven other judges. One judge from the majority recusing from the case would have altered the outcome; had the final vote been 12 to 12 instead of 13 to 12, the district court's judgment would have been automatically affirmed by the equally divided en banc court. Because every circuit court panel opinion is theoretically subject to review by the full court sitting en banc, a circuit judge never knows in advance when his or her recusal may result in exactly the same institutional disruption that, in part, formed the basis for Justice Scalia's reluctance to recuse himself at the Supreme Court level.

More importantly, whether at the district or court of appeals levels or before the Supreme Court, litigants who file recusal motions usually do so tactically, rather than for reasons of undiluted principle; the Sierra Club, for instance, doubtless thinks its odds of winning would be improved if Justice Scalia in particular were bumped off its case. That's one reason the disqualification statute — 28 U.S.C. § 455(a), with its "might reasonably be questioned" language that superficially looks awfully broad and subjective — has in fact (in all those cases the Sierra Club's brief didn't cite) been interpreted very narrowly. Otherwise, you encourage litigants to play judge-shopping games with the system in hopes of grasping an advantage.

I was also unsurprised but gratified to see this statement:

Even so, recusal is the course I must take — and will take — when, on the basis of established principles and practices, I have said or done something which requires that course. I have recused for such a reason this very Term. See Elk Grove Unified School District v. Newdow, 540 U.S. ___ (cert. granted, Oct. 14, 2003).

Toldja so. The "established principle" referenced in this mea culpa about the Newdow Pledge of Allegiance case, I'm now even more convinced, was not section 455(a), but rather that articulated by Canon 3A(6) of the Code of Conduct for United States Judges: "A judge should avoid public comment on the merits of a pending or impending action." That the Code does not, by its own terms, apply to Supreme Court Justices doesn't mean that they should ignore its "established principles"; and as I previously wrote, having violated one of those principles by speaking in public about that specific case while it was an impending action before the Supreme Court, Justice Scalia was right to recuse himself in it, notwithstanding the significant possibility that his doing so may prove outcome-determinative.

Sen. Kerry's faceplants on vacation

Whether it's clearing tough central Texas underbrush or snowboarding down Sun Valley's Bald Mountain, Americans like to see their Presidents and Presidential candidates engaging in vigorous exercise. I suppose it's a tribal thing — we like to know that "the chief" can throw a silver dollar across the Potomac or split rails or hunt bears. Seeing Nixon walk on the beach in black wingtips was disquieting.

So like the rest of the American public, I'm glad to read that Sen. Kerry is having a vigorous vacation. He deserves it — taking every position on every issue is doubtless stressful. But can someone tell me why this haughty, French-looking Senator can't even hit the slopes without raising new doubts about his personality and character?

Per the NYT:

On his first full day off, though, Mr. Kerry awoke determined to hit the slopes of Mount Baldy.

The image-conscious candidate and his aides prevailed upon reporters and photographers to let him have a first run down the mountain solo, except for two agents and Marvin Nicholson, his omnipresent right-hand man.

His next trip down, a reporter and a camera crew were allowed to follow along on skis — just in time to see Mr. Kerry taken out by one of the Secret Service men, who had inadvertently moved into his path, sending him into the snow.

When asked about the mishap a moment later, he said sharply, "I don't fall down," then used an expletive to describe the agent who "knocked me over."

I've never snowboarded, but I skied regularly for over twenty years — got pretty good at it, in fact, for a Texan. Anyone who's done the sport knows that especially on spring break week, you're likely to be knocked down by someone else and, even if you're very good and very careful, also likely to knock someone else down. Happens every day, every hour.

I've been called a few expletives on the slopes. And I've had occasion to call a few others by them. But even when I really needed a vacation very badly and hit the slopes pretty tightly wound, I tried to distinguish between, say, someone who knocked me over because he was hotdogging recklessly and someone who was a more innocent victim of fate and physics. I've never had someone following me around whose sworn duty is to jump in front of a bullet aimed for my heart; and I suppose even someone doing that duty could manage to be unpleasant and annoying, in addition to having a momentary lapse of perfect judgment about where to be placed or moving to avoid all collisions.

But still.

And remember that quote, "I don't fall down"? Per the SF Chron, presumably describing a different run on a more challenging slope:

Kerry, his snowboard strapped to his back, hiked past 9,000 feet on Durrance Peak, then snowboarded down the mountain, taking repeated tumbles. Reporters counted six falls, although Kerry was out of sight for part of the descent. To be fair, other skiers tumbled as well.

I guess he doesn't fall down in the same sense that he voted for the Iraq reconstruction appropriations.

Hey, there's no shame in falling — as with aircraft and landings, any fall you can ski away from is a good one. If the conditions are challenging or you're pressing the limits of your skill, you're gonna have some tumbles. And every skier knows about the snow gremlins who can grab one of your edges and cause a fall even when you're a good skier on an easy slope — or heck, standing in the lift lines (not that Kerry likely did much of that). I've got hours of videotape of myself and family and friends bidding for blooper-reel fame.

But why would you ever say "I don't fall"? To a newspaper reporter? Doncha know they're going to be waiting, watching, clicking, counting? Shades of Gary Hart!

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Update (Fri Mar 19 @ 8:45pm):   Drudge says that the expletive was "son of a bitch." Coulda been worse, I suppose. Kevin Whited at Reductio Ad Absurdum and Hindrocket at Power Line have posted reactions similar to mine over this story, and Hindrocket's post also has a great photo.

Update (Sat Mar 20 @ 4:25pm):   An ABC news reporter confirms the NYT story in their permalinkless The Note, including — sadly — the lack of humor in Sen. Kerry's reference to the Secret Service agent:

As Senator John Kerry carved his Burton snowboard down a green rated Upper College run, another skier interrupted his stride, colliding with the presumptive Democratic nominee at 9,010 feet.

The slope-cade of two Ski Patrollers, several Secret Service agents, two journalists, one camera and one Kerry aide suddenly came to a halt. The Massachusetts Senator lay on the ground, removed his Smith sunglasses, and surveyed the damage.

Assured that the ABC News camera accompanying the entourage had not captured Kerry's fall, the Senator glared at your sloping Noter and assured, "I don't fall down. That son of a bitch ran into me."

The Noter doesn't identify the collision as being with a Secret Service agent, but the Boston Globe's article does. Seems the basic facts aren't in dispute.

Update (Sat Mar 20 @ 11:30pm):   Moxie's reaction is also similar to mine, and she includes a nice bit comparing Sen. Kerry's reaction to that of Dubya falling off the Segway scooter last year. Of Sen. Kerry, she asks, "Is this a man you would trust to watch your pets — let alone run our country?" Actually, I'd be afraid he'd try to teach my pets to speak French and Italian.

Roger L. Simon writes of this incident, "Maybe it's just me, but it bothers me more than his flip-flopping, which is SOP for many politicians." And one of Roger's commenters reminded me of this personal anecdote about Sen. Kerry from columnist Dave Barry:

In conclusion, I want to extend my sincere best wishes to all of my opponents, Republican and Democrat, and to state that, in the unlikely event I am not elected, I will support whoever is, even if it is Sen. John Kerry, who once came, with his entourage, into a ski-rental shop in Ketchum, Idaho, where I was waiting patiently with my family to rent snowboards, and Sen. Kerry used one of his lackeys to flagrantly barge in line ahead of us and everybody else, as if he had some urgent senatorial need for a snowboard, like there was about to be an emergency meeting, out on the slopes, of the Joint Halfpipe Committee.

Professor Bainbridge in a ball gown?

That was my first reaction when I read this post. But seriously, folks, I'd never before heard of the possibility of an appellate judge issuing an opinion either "dubitante" or "debutante" — and having troubled to read the post from the Indiana Law Blog that he linked to explain the former, I still think either would be a very bad idea (at least for male appellate judges in the latter case).

The reign in Spain; why a "vote for Kerry" isn't a "vote for bin Laden"; and why I'm glad Dubya didn't get into Texas Law School

The title of this post should give you fair warning that I'm rambling here. If you're looking for tight, cogent analysis, look elsewhere. I'm in a musing mode, writing mostly for myself today, and what follows is half-baked but sincere.

The blogosphere — left right and center — has been abuzz with analysis and speculation about the results of the Spanish elections last weekend on the heels of the horrible terrorist attack in Madrid. I lack the energy tonight to gather even a sampling of the links, although odds are any random dart-throw into my blogroll will take to you a collection of them.

Driving home tonight, while pondering some of these pundits' pundifications, I concluded that I'm very glad that George W. Bush didn't get into Texas Law School in 1970.

The result of the Spanish election is indeed, I think, a victory for the terrorists — at least in terms of perceptions. My feelings of horror and profound sympathy for the Spaniards, as expressed last week, remain unchanged. I respect their right to make choices with which I disagree. As a matter of substance, how much less supportive Spain will become as an ally in the War on Terror remains to be seen. Certainly America has had no better ally than Tony Blair, for instance, notwithstanding his position to the left of the center aisle in UK politics. But I think it is a reasonable conclusion that either by affecting swing voters, or encouraging a larger turnout, or just encouraging a hope (which I believe to be a naive one) that a symbolic act of defiance against a government identified with Dubya will somehow help the Spaniards "lie low" and escape from the terrorists' metaphorical radar screens, the terrorists' actions changed the outcome of that election.

This disappoints me and concerns me, but it certainly does not panic me.

And I believe there is a considerable risk of panic. I believe there is a considerable risk of counterproductive rhetorical overkill. While al Qaeda and (if he's alive) Osama bin Laden no doubt wished for the results they apparently achieved in the Spanish elections, I think it's a mistake to say, even metaphorically, that "bin Laden was the winner of the Spanish elections" or anything of that sort.

I think it's fair to say that in the War on Terror, nations are either "with us" — meaning civilization — or with the terrorists. But the fact that there's been a change in the Spanish government doesn't mean Spain is suddenly "with the terrorists." The Taliban was with the terrorists; Saddam's Iraq was with the terrorists; those regimes are no more. Libya was, but probably isn't; Iran is, but may be tottering, and ditto Syria. North Korea is with the terrorists; the proto-nation represented by Arafat is with the terrorists. They need to be dealt with. But there's no need for the 82nd Airborne to storm Madrid or Berlin or Paris.

And by the same token, I think it's dangerous rhetorical overkill to say, "A vote for John Kerry will be a vote for bin Laden!" I believe John Kerry is a craven fool, a consumate and unprincipled politician, a man lacking in moral integrity, and a profoundly silly but dangerous bore. I believe if he's elected President, our nation and the civilized world will make far less progress in the War on Terror, and ultimately pay a heavier price than otherwise. But I do not think he's a traitor, and I don't doubt that somewhere in that muddle of self-promotion there's at least a speck of patriotic intent. I'd be much comforted if I thought he was even half as clever as Bill Clinton, and I fear he may turn out to be as brilliantly stupid as Jimmy Carter. But the country survived both of them, and would survive a Kerry Presidency as well. And there are certainly a great many moral, patriotic, and bright Americans who have come to the good-faith (if, I believe, erroneous) conclusion that we'd be better off with Kerry. I refuse to insult them.

"Who do the terrorists want to see lose the next American election?" Well, duh. That's a no-brainer, but by itself it's also not a very meaningful question. Even if the question is reformulated to "Who do the terrorists believe would be more effective in prosecuting the War on Terror against them?", the answer is only particularly interesting if you think that the terrorists' perceptions on that topic are somehow an indication of the correct answer. "Who will be more effective in prosecuting the War on Terror?" — that's the right question. I think the answer to all three questions is George W. Bush, but the fact that all three questions have the same answer doesn't make them equivalent to each other, and it's only the third of them, in fact, that will influence the way I vote.

I sometimes enjoy listening to Wagner's operas, and I really like German shepherds as a breed of dogs. So did Hitler. So what?

It's the third question that brings me around, finally, to why I'm glad Texas Law School rejected Dubya's application. It's not that I think lawyers are necessarily unqualified to be President — although I think pretty decent arguments can be made that it was Bill Clinton's legal training that led to some of the evasive hair-splitting that turned into lies that brought him to a well-deserved vote of impeachment. But when I look at John Kerry's career path after his failed first run for Congress, it started with law school and then transitioned into a public prosecutor's job, and ever after that he's hit all the conventional milestones on the path to the Presidency. Dear lord, he's been running for President since even before that famous "Sixty Minutes" interview in 1971.

Law school is a traditional haven for those who either are planning a career in politics or else can't figure out what they want to do with themselves. Sometimes the latter get converted to the former. I'm guessing that young George W. didn't have a burning passion to practice law when he applied to Texas Law School, and I fear that if his Yale grades had been a little better or Texas Law School's admissions program had been a little less meritocratic, he'd have gotten the same bug that bit John Kerry. Instead of learning some management skills at Harvard Business School and then getting some real-world hard-knocks experience in the west Texas oil patch, he'd have started "molding himself" for a political career in the 1970s. Instead of soaking up the insider's view he had during his father's Presidency, he'd have been shilling for votes of his own. If he'd been under the full political spotlight for all of the last thirty years, he probably wouldn't have had the personal transformation that gave him a strong moral compass, and his moral deficiencies would have remained latent and hidden rather than being corrected. And the most important thing to him in the world would have become his own political success.

Like Bill Clinton, John Kerry wants to be President more than anything. George W. Bush, by contrast, only wants to be President because of what he can do for America and the free world from that office. I'm glad, therefore, that he stumbled from the early political path, including law school, that John Kerry has followed so assiduously, so ruthlessly.

At last, Beldar's blogroll

I'm not quite sure why I've resisted creating a blogroll. Certainly I've been gratified to have been added to a number of other bloggers' own blogrolls, and I certainly have long had a set of bookmarked favorites. TypePad makes it easy to create such lists and edit the items in them (although extremely difficult to reorder the entries once created, unless I'm missing something).

I suppose one reason for my reluctance has been a feeling that it's "not my place" to tell you, gentle readers, where you ought to be browsing. But heck, I've always listed the five most recent books I've read and DVD movies I've watched. I suppose, as always, you'll browse where you please, and my bloglist should be viewed not as my "recommendations" as such, but more as a reflection — for what it's worth, which to anyone but me may be almost zero — of where I regularly choose to browse.

There's a definite conservative trend to my list, with a few conspicuous exceptions (Burnt Orange, Charles Kuffner, Kevin Drum). I'm vaguely concerned that I've surely left some folks off who've been kind enough to link or blogroll me in the past; and I'm not sure what guidelines I'll follow in making additions and deletions to it, although anyone who's blogrolled me is more than welcome to suggest via email that I reciprocate.

But for what it's worth, there it is, over near the bottom of the sidebar to the right.

Update (Sun Mar 14 @2pm):   Okay, I've finally figured out how to export and import using TypePad's Lists for relatively easy updating, editing, and resequencing of my blogroll, and after cross-referencing my Favorites on another computer I've added about a dozen additional links. The alphabetizing is still a bit spotty (TypePad insists on listing "Right Wing News" before "Right on the Left Beach," for instance, apparently because it thinks all capitalized letters are earlier in the alphabet than all lower-case letters), and I haven't put surnames first for those whose blogs are named after themselves with their first name first (e.g., Roger L. Simon, Daniel Dresner). But it's functional, if not consistent or exactly pretty.

'Spain's 9/11'

I've been to Spain twice — in 1981 on the obligatory post-clerkship backpack and Eurailpass sweep, and then again for a more leisurely three weeks in 1985 on my honeymoon. I love the country and its people, and I look forward to returning again someday.

I have nothing particularly clever or insightful to say about today's terrorist attack in Madrid that has left more than 190 dead and more than 1200 wounded.

But I can't just say nothing.

I see the pictures of the blasted, the dead, the dying, the maimed. And I can't help but wonder about the waiter in a tiny Madrid bistro who took pity on my jet-lagged bride and me on our first "night on the town" after we'd ordered a local speciality, "callos," that was touted by Let's Go: Europe but that turned out to be tripe. He insisted on bringing us beef steaks that we couldn't pay for because we hadn't yet changed enough money, and waved off our promise to return with payment the next day. I remember the proud, stylish, sophisticated young men and women who were strolling the Gran Via and the smaller city streets and the tapas bars after twilight and before the proper (oh-so-late) dinner hour, who looked with bemused indulgence at my student's wardrobe and backpack. I've yet to set foot in the Prado, but I remember dozens of small experiences with ordinary Spaniards, off the beaten paths, that collectively made me feel a bond with those people, a commonality with them, a genuine affection and admiration for them. The odds are that someone I met on one of my two trips to Spain is today suddenly dead, or wounded, or has a family member or close friend who is.

Al Qaeda has claimed "credit"; indigenous terrorist group Eta has denied responsibility; time will tell where the truth lies. Regardless, the obvious, painful lesson is that the War on Terror isn't an "American war," much less "George W. Bush's war."

Spain has already been a noble ally in the Coalition of the Willing — a/k/a "the fraudulent coalition" in Sen. Kerry's incredibly offensive phrasing. Spain had long since earned the respect and gratitude of those in America and the rest of the civilized world who "get it" — who understand that the War on Terror isn't just a law enforcement and intelligence matter, or just a subject for U.N. debates and resolutions and blue-helmeted peacekeepers, or just something that diplomacy and maybe a few cruise missile strikes can "keep in its box."

Spain's shock and grief will turn to outrage and anger, and then to cold and furiously steadfast resolve. I share those emotions; I mourn and honor Spain's dead and wounded; and I dread the next such attack.

National nightmares like 9/11, or like today's brutal bombings, will at least rip the illusions from a few millions more civilized men and women. And that ultimately is why the terrorists (and the rogue states who support and shelter them) will be defeated. Some folks mocked President Bush's declaration after 9/11 that "you're either with us" — "us" meaning not America, but civilization — "or you're with the terrorists." But with each such tragedy, fewer and fewer civilized persons will still be able to mock, and deny, and delude themselves. Inaction and illusion will become universally unacceptable — and then, finally, there will be no place left for the terrorists to hide, and no hope for their escape.

Lithwick linkage re Scalia & judicial ethics

As I've explained at more length in an update I've inserted at the beginning of my original post from October 2003 entitled "Justice Scalia was right to recuse himself in the Pledge case," I didn't make, and in fact do not agree with, the "suggestion" — attributed to me via a link in Slate senior editor Dahlia Lithwick's article today entitled "Fighting Words: Leave Scalia Alone" — that "justices limit their speeches to scholarly, rather than advocacy groups."

My original post was a long one. Judicial ethics is a serious topic that deserves more than superficial treatment. I agree with the main thrust of Ms. Lithwick's article — that is, that Supreme Court Justices aren't proscribed from speaking on hot legal topics to advocacy groups on penalty of having to recuse themselves from cases involving those issues. And I agree with her that yesterday's article in the Los Angeles Times attacking Justice Scalia for having given "a keynote dinner speech in Philadelphia for an advocacy group waging a legal battle against gay rights" is misguided.

Perhaps, however, if she'd read my original post more closely — or better yet, read some of the Supreme Court ethics precedent written by Justice Scalia that I cited and quoted from at length — Ms. Lithwick's analysis would be more persuasive when she writes about judicial ethics. And perhaps she'd be right more consistently, instead of (as it seems) only occasionally and almost by accident.

Unfortunately, here as all too frequently in her writing about the Supreme Court, Ms. Lithwick is content to give only superficial legal analysis. Anything more would get in the way of her underlying conviction that everything the Supreme Court does is based on the personal whims and politics of the Justices — a conviction revealed again in her concluding lines today:

Increasingly, it seems like the worst thing anyone can say about Antonin Scalia is that he is honest and intellectually consistent. He has so many other more interesting faults, I assure you. And if we let him speak without hounding him, we're bound to find more of them.

Ah, yes — "I assure you." Such assurances only have real value if the person making them has credibility; and credibility is earned only by attention to detail. In Ms. Lithwick's case, her misattribution of a suggestion to me that I never made is unfortunately all too revealing of the attention she pays to the details. It's for that reason that I rank her credibility on matters of judicial ethics only a notch above the far more entertaining Wonkette.

Perpetuities

Okay, this one is truly "inside baseball," an anecdote that will not likely be appreciated by any of my nonlawyer readers, and maybe by only a few of those.

The inspiration for my tale today is a short post entitled "The Role of Fear in Long-Term Memory," in which blawgger Evan Schaeffer of Notes from the (Legal) Underground writes with feeling:

No interest is good unless it must vest, if at all, within 21 years of a life in being at the creation of the interest.

What else but the fear of failing Property, combined with the fear of failing the Missouri and Illinois bar exams, can explain why I instantly recall this gibberish after sixteen years? Someone please send me instructions for removing the Rule Against Perpetuities from my brain. The space is urgently needed for remembering my children's birthdays.

Upon reading this, I immediately flashed back to a beautiful day in the late spring of 1990 when my practice took me to 600 Camp Street in New Orleans — the stately home of the United States Court of Appeals for the Fifth Circuit — where I had the privilege and duty of appearing before a three-judge panel of that court to present oral argument.

My client in the case was a manufacturer of consumer electronic equipment who'd extended a substantial credit line to enable purchases from it by a dealership that sold such goods at retail. The dealership had a shakey financial picture, and sure enough, it eventually went under, owing my client a large sum of money. At the beginning of their business relationship, however — as a condition for extending credit to his company — my client had prudently insisted that the dealership's owner, in his personal capacity, sign a "continuing, unconditional personal guaranty." So on the basis of that guaranty, my firm had sued the dealership's owner. He still had money enough to pay for fine lawyers, and they responded to the lawsuit with a flurry of desperate and creative arguments to try to save their client from personal liability under the guaranty for his defunct company's debt. To our astonished dismay, the federal district court had bought into a couple of those arguments and had thrown our client's case out on summary judgment, so I was wearing my "appellant" hat at the oral argument.

We'd done a good job briefing the appeal, and I've never had an oral argument go more smoothly. I was swinging for the fences — I was asking the panel not only to reverse the district court, but to render judgment for my client rather than simply remanding for a full trial. The panel of three experienced judges had been uncharacteristically silent, asking me almost no questions throughout almost my entire allotment of time, but I was getting good vibes — they seemed to be listening approvingly, to the extent one can tell such things from the advocates' podium. So I methodically rebutted not only the guarantor's arguments that had persuaded the district judge, but all the others he'd raised that the district court hadn't bothered to reach. And amazingly, when I got to the end of what I'd planned to say, I still had time left over!

"How cool is this?" I was thinking to myself, "I'm going to get to sit down with unused time!" So I squared up my notecards and closed my ring-binder of record excerpts. "Unless the members of this Honorable Court have further questions," I said confidently, "I will reserve the remainder of my allotted time for rebuttal after the presentation by my distinguished opponent, counsel for the appellee."

At which point one judge looked me in the eye and said — from somewhere out by the left field bleachers, I think — "Mr. Dyer, you say that by its terms, this guaranty agreement was continuing in nature. Unless and until revoked, it was drawn up so as to cover every additional extention of credit your client made to Mr. Z___'s company, is that correct? Continuous ... on and on ... isn't that what you're claiming, Mr. Dyer?"

"Why, yes, Your Honor, absolutely."

"So then, Mr. Dyer, why isn't your guaranty agreement void as a violation of the Rule Against Pepetuities?"

Of course, there is no pipe organ in the en banc courtroom of the Fifth Circuit headquarters, but I could have sworn that I heard three soap-opera chords descending at fortisimo volume — "bahm-bahm-BAAAAAHM!" My palms began to sweat. "Well, Your Honor ...," I vamped for a moment as I tried to remember back to the last time I'd heard or thought of the Rule Against Perpetuities.

I flashed back to a moment some ten years earlier during my bar review course, when the instructor confidently clued us in on a little-known secret: "All you need to know is that any time on a multiple choice question, whenever one of the choices is the Rule Against Perpetuities, that is not the correct answer!" (Yes, this is a flashback within a flashback.)

"Great," I thought to myself in the cool, quiet stillness of the courtroom, "if only the Fifth Circuit judges asked multiple choice questions!"

"... If I recall my property law, Your Honor, the Rule Against Perpetuities only has to do with conveyances of real property. This case, of course, involves only personal property — specifically, money. Moreover," I gamely struggled along, "although I don't remember the exact terms of the Rule Against Perpetuities, the test for whether a conditional conveyance was invalid depended on whether or not the condition could go undetermined for longer than a certain number of years past the lifetime of someone already living. Since this guaranty was personal to Mr. Z___, his own lifetime would effectively mark the end boundary after which the extension of further new credit wouldn't be covered, meaning the Rule couldn't be triggered here." I wiped my palms against my pants legs, hoping no one noticed. "And finally, Your Honor, regardless of whether I'm remembering the Rule and its terms correctly or not, I'm absolutely certain of one thing — the record on this appeal will conclusively show that Mr. Z___'s counsel never raised any arguments in the district court based on the Rule Against Perpetuities, nor in his briefs before this Court, so if Mr. Z___ had a defense on that basis, it's been conclusively waived!"

I stopped looking at the judge who'd asked the question and glanced at the other two panel members. Both were obviously struggling to control their laughter. Off to one side, the law clerk for the judge who'd asked the question looked like she'd been pole-axed; I'm very certain that particular question hadn't been in the bench memo she'd written to prepare her judge for oral argument, but was instead an instance of a judge "winging it" — or maybe even just yanking my chain for giggles and grins with a deliberately screwball question.

"Thank you Mr. Dyer, we'll hear from your opponent now," intoned the senior judge on the panel, having quickly regained his formidable composure. "I'm quite sure we've all had our daily, or perhaps our yearly, dose of the Rule Against Perpetuities by now."

I was very gratified when only a few weeks later, the Fifth Circuit issued a unanimous opinion granting exactly the relief I'd requested — reversed and rendered with instructions to calculate the damages and then enter judgment for my client in the full amount. The opinion exactly tracked our briefs and the oral arguments I'd made. Home run, game over!

And there isn't a word in the opinion about the Rule Against Perpetuities.

But the moral, of course, is this:   Evan, be careful what you wish for. You never quite know when some judge is going to probe some deep, dusty, musty corner of your memory and you'll need to summon up your recollections about that damned dumb rule!

Deal lawyers and trial lawyers

Scheherazade at Stay of Execution has an interesting pair of posts up — the first about being a transactional lawyer, and the second wondering about trial lawyers. The comments are also interesting, and I've contributed in my usual longwinded™ fashion on each.