A “jeofail” is an error by an attorney, or the admission of such an error to the court. Either way, the word seemed like a good fit for this blog. This is my third attempt at blogging, the two previous efforts being noncuratlex.com and continuingnuisance.com. This blog will probably be no more long-lived than its predecessors, but we’ll see. Thank you for reading.
The Ultimate Dissent
Someone recently asked about this old post I wrote on a prior blog of mine, so I’m reprinting it below:
The Ultimate Dissent
(Originally posted on August 19, 2013 on noncuratlex.com)
The majority’s reasoning is faulty. It proves too much. It sets the law upon a slippery slope. It is too clever by half. It is unprecedented. It cannot withstand scrutiny. It will lead to absurd results. It applies a one-way ratchet. It proves the opposite. It constructs, then tears down a straw man. It eviscerates settled caselaw. It misreads the pertinent text. It is dangerous. It will open the floodgates. It equivocates. It is judicial activism. It assumes its conclusions. It generates inefficiencies. It is unscholarly. It disregards public policy. It is circular. It usurps the jury’s function. It lacks any basis in precedent, legislative history, or the language of the pertinent regulation, statute, treaty, and/or Constitution, and in fact, runs directly contrary to all of these sources. It misapprehends the parties’ respective burdens. It tries to have things both ways. It is its own best refutation. It misses the point. It sows mischief. It is hopelessly ambiguous. It opens a Pandora’s box. It obfuscates rather than clarifies. It does not—indeed cannot—adequately answer the question. It is dicta. It unnecessarily decides a Constitutional question. It misreads the record. It elevates form over substance. It will have perverse effects. It disregards the evidence. It is inapposite. It misconstrues the issue. It is unsettling. It unleashes a parade of horribles. It denigrates a venerable institution. It pounds the table. It is internally inconsistent. It perpetuates iniquity. It is regrettable. It will be resigned to the ash heap of history. It is a Morton’s Fork. It is grossly unfair. It misses the mark. It collapses under its own weight. It is unworkable. It dashes settled expectations. It draws illusory distinctions. It is a non sequitur. It begs the question. It relies on overruled authority. It raises issues that the parties do not. It legislates from the bench. It cannot be taken literally. It seizes upon hard facts to make bad law. It is wrong.
Therefore, I concur only in part.
Tort Law for Children
I have a young daughter and I have wanted to write a series of books that would explain some basic legal concepts to her. The hard part has been the artwork. I am not an artist and never will be. But on nights and weekends over the past few weeks, I cobbled together some felt depictions of famous tort cases for the first book in the series, Tort Law for Children. (I started with torts because I thought it would be the most accessible area of the law for her, judging from her taste in cartoons.) You can check it out here: Tort Law for Children Book.
Predicting the Future in Tort Law
This is the title of an essay I’ve written and recently posted in draft form on SSRN. I’ve kept the abstract pretty simple:
Many predictions have been made, especially lately, about how tort law will
interact with new technologies. But what can one actually foresee in this respect? This
essay considers what lessons the emerging field of forecasting science might provide for predictions regarding tort law and innovations, and proposes some rules and best
practices for these kinds of forecasts.
The essay discusses tort law’s application to innovations of the past and present (trampolines, automobiles, and airplanes among them) and the not-always-successful efforts that have been made to predict how these interactions will unfold. Like most of my writing, it’s more descriptive than normative, but I do offer some suggestions regarding forecasting in this sphere.
Some projects write easy; others not so much. It took forever for the idea behind this essay to coalesce into anything I felt comfortable sharing with a larger audience. The piece could probably benefit from still more polishing — comments are always welcome — but it was time for the perfect to stop warring with the good (or at least, the mediocre) and get this out there.
The court . . .
When I’m writing a legal document, I often rely on a short set of pretty basic verbs to describe what the court did or said in a particular case, e.g., “The court stated,” “The court held,” “The court determined,” “The court explained,” etc. But I also recognize that other words can have more punch, and variety being the spice of life, I thought it would be helpful to compile a list of words that could be used as substitutes, in appropriate circumstances, as follows: