The Comma

Originally appeared in the January 1998 issue of the ABA Journal.

The Comma

BY ANDREW J. McCLURG

Many years ago, on a hot desert night near Roswell, New Mexico, a world-altering event occurred. Four superior beings from a far away place came together and forever changed the fate of millions of innocent lawyers.

That’s right. I’m talking about the night the Ivy League Committee on Uniform Citation met to create Rule 15.2 of The Bluebook, which mandates in profound language: “If the title of a work ends with a date, the page number must be set off by a comma.”

A transcript of that clandestine meeting recently surfaced in a footnote under suspicious circumstances. In an ABA Journal exclusive, here is the true story of Rule 15.2 and its infamous comma. The meeting opened with Editor-In-Chief Irving Frunk explaining the merits of his proposal to the other editors:

Irving: We need that #*%##&* comma! Rule 15.2 means nothing without The Comma. I’ll gladly die for it.

Frieda: Accord.

Dan: Accord.

Wendy: Contra. Put down the gun, Irving.

Irving: Okay, but I want proof of everyone’s commitment to The Comma. I’ve decided to quit law school and become addicted to amphetamines so I can contemplate the comma twenty-four hours a day.

Dan: I’m going to have Rule 15.2 tattooed on my buttocks, right under the rules for Separately Bound Legislative Histories.

Frieda: I’ll cut out my husband’s entrails and form them into the shape of one huge comma.

Irving: What about you Wendy?

Wendy: I have to take care of my sick parents.

Irving: Doesn’t the comma mean anything to you?

Wendy: Alright, I’ll put them in a nursing home.

Irving: Fantastic. We’re all behind The Comma. But before we can officially adopt it, we’re obligated under our Non-Discrimination Policy to give equal consideration to the period, exclamation point and question mark.

Wendy: What about umlauts? They’ve never gotten a fair shake. We don’t have a single umlaut in the entire Bluebook. It might be a nice change.

Frieda: That’s sick. Shoot her, Irving. She doesn’t love the comma like the rest of us. We don’t need change. We need The Comma. The comma is the only possible answer. And to give it dignity, we must enshrine it in parentheses.

Dan: I have an even better idea. Let’s put a hundred commas in a row! Look at this.

(Dan distributes the following draft of his proposal:)

,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,
,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

Dan: Isn’t it glorious? Think of the symbolism. Commas giving birth to commas, bursting onto the next page, into the next generation and beyond. Let’s make it a thousand. Ten thousand! Commas for infinity. Commas for …

Irving: Easy, Dan. Slow down. First we need to get everyone obsessing about The Comma, then we’ll be free to do as we please. It’s been a long night. We need food and rest. We’ll reconvene at sunrise to draft a preamble to the comma. Let’s close with our traditional blessing. Place your hands on The Bluebook. Thank you for 365 pages of stability and truth. And thank you for The Comma. Amen.

Disclaimer: This is a work of fiction. All characters and punctuation described herein are either invented or used fictitiously, except of course for The Comma, which is all too real.

Sentencing Suzy

Originally appeared in the February 1998 issue of the ABA Journal.

Sentencing Suzy

BY ANDREW J. McCLURG

Children have an almost instinctive sense of the law. This no doubt derives from their pervasive experience with the adversarial system, which begins at birth.

By the time she is able to walk, the average child has been enjoined more than 200,000 times. Every movement, every reflex, every instinct is met with injunction: “No! Don’t bite. Don’t touch. No! No! Don’t hit. Don’t pull. Spit that out. No!” Not surprisingly, children develop excellent legal problem solving skills, from which lawyers can learn.

Consider the case of Suzy Spikes. Suzy is a precocious preadolescent girl who is close friends with my daughter, Caitlin. They play together when Suzy is not busy preparing for hearings in juvenile court. Suzy has taught Caitlin many lessons about life, most of which concern how to beat the rap.

During a recent neighborhood gathering, Suzy added a new twist to a popular childhood game. “Combat Monopoly” became an instant hit until the EMTs arrived to remove Suzy’s deed to Baltic Avenue from Billy Johnson’s nostrils.

Suzy received a speedy trial for this offense from her parents, Art and June Spikes, before whom she has successfully argued hundreds of cases. However, in this case her defense was hampered by an evidentiary ruling to “Not say even one word while I’m speaking to you, young lady.” The sentencing phase of her proceeding provides valuable lessons for lawyers:

An accused has the right to speak in mitigation of punishment. Suzy asserts she’s an innocent victim of the system and recounts her wounded childhood.

She reminds the judges that she’s always been their “precious little puddin’” and “snuggly-wuggly-bug.” She extolls the many months of patience she showed during her mother’s pregnancy and asks for the same consideration. In summation, she attempts to bribe the judges. Her allocution, though impassioned, leaves the judges unmoved.

A prior record can prejudice the accused. In response, Mrs. Spikes raises Suzy’s recent convictions on 23 counts of Negligent Failure To Make Bed, 47 counts of Willful Annoyance and 1,205 counts of Bad Attitude with Intent to Act Like A Teenager, a felony.

At this point, a baggie falls out of Suzy’s pocket and a pending charge of Unlawful Possession of Jolly Ranchers is added. Suzy objects to the introduction of this character evidence. Her objection is overruled, but she has preserved grounds for an appeal.

Never antagonize the court during sentencing. When pitiful sobbing fails to bring mercy, Suzy switches tactics to aggressive advocacy. She denounces the “corrupt judges of this kangaroo court” for their perceived inability to “never possibly know in a million years” the pressures faced by eleven-year-old girls.

To emphasize her point, she throws up on the carpet. This error in trial strategy results in a stiff upward adjustment under mandatory sentencing guidelines recently adopted by the Spikes household. Suzy is currently due to be released from her room in her junior year of college.

In future columns, we will continue tracking this interesting case through appeal, Suzy’s adolescence, first date, sixteenth birthday and hard time in the penitentiary.

Perpetually Clueless

Originally appeared in the March 1998 issue of the ABA Journal.

Perpetually Clueless

BY ANDREW J. McCLURG

Some readers have e-mailed suggesting that the Rule Against Perpetuities would be a natural fit for this column. Of course, they’re absolutely right. Other than the Bluebook, there is perhaps nothing more intrinsically funny in all of law.

You can easily test this theory by gathering any group of highly-serious senior partners in a conference room. The more dour the partners, the better the test results. First, get them in a really bad mood by telling them insurance costs are skyrocketing, the copiers are harassing the fax machines and the staff is threatening to strike unless Casual Day is expanded to include Pajama Week and Beach Party Summer.

Administer the test by reading explanations of the Rule Against Perpetuities from any standard hornbook. By the time you get to the part about fertile octogenarians, the partners will be flipping each other’s ties, snorting milk out their noses and making funny sounds with their armpits.

Why is the Rule Against Perpetuities so funny? Lots of reasons. For one thing, no other legal rule has doctrines that sound like old blues tunes. “Bad As To One, Bad As To All” and “Unborn Widow” could have been classic hits for Muddy Waters.

But the most hilarious thing about the Rule Against Perpetuities is that no one understands it. Yet everyone still vividly remembers not-learning the rule. Studies show that all the average lawyer knows about the rule is that, for reasons never fully developed, “21 years” is important to property law.

To this day the legal folklore circulates that because the rule is so complex, a lawyer cannot commit malpractice by misapplying it. However, my colleague assures me this is not true. He says that lawyers can indeed get sued for violating the rule, it’s just that no one can ever figure out why.

But pity poor law students, who must actually worry about the rule. Here are a typical law student’s class notes on the Rule Against Perpetuities:

RULE AGAINST PERPETOOTIES — No contingent future interest … transferee … vest or fail within 21 years … death … life in bean??? creation???? interest???????

PROF SAYS RATIONALE STRAIGHTFORWARD — A rule against remote vesting designed to limit … grantees-ORS! … Alien Nation of property??? … something something something …

Cut off contingent??? uncertainty???? inhibit transfer?????

EX. A conveys Blackacre to B for life then to children of B who survive her. B has son C. EASY ANSWER: Contingent remainder subject rule <<< find out what this means.

SLOW THE **** DOWN! Something about???

BUY PROPERTY FLASHCARDS!

IF CONFUSED, ASK THESE QUESTIONS:

1. Is there any way the interest might have or might NOT have vested OR failed to vest … 21 YEARS?

2. Can a measuring life be alive … 21 YEARS?

3. Are you 21 YEARS OLD? Must be drunk to understand Rule — prof joke.

4. … 21 YEARS 21 YEARS 21 YEARS …

[Three more pages of clarifying notes]

Prof says don’t worry about. NOT ON TEST. No one understands. Not malpractice!!!

That barely scratches the surface of the Rule Against Perpetuities. Don’t even get me started about it because these things can go on and on for more than … you guessed it, 21 years.

Matter of Form

Originally appeared in the April 1998 issue of the ABA Journal.

Matter of Form

BY ANDREW J. McCLURG

It’s tax time. Last week I went to collect the forms I’ll need. When I was returning the U-Haul, I ran into a bunch of other taxpayers returning their U-Hauls. We were all stressed out about the mountain of paperwork looming ahead. This is no surprise. Surveys show tax season makes Americans depressed and trees downright suicidal.

The tax system needs simplifying, but there’s good news. Last night I was watching Internal Revenue Service hearings on the Sci-Fi Channel and learned that the IRS is recommending a total overhaul of our tax forms.

Under the proposal, ten trillion tons of old forms will be recycled into paper-mache replicas of adorable tax dependents which will be sold on the Home Shopping Network as collector’s items.

This will allow the agency to finally fund its top priority project: sponsoring a bright red race car on the Nascar circuit. If the IRS proposal is adopted, all existing forms will be replaced by a single page, the ultimate in tax filing efficiency, the brand new …

TWO-MINUTE TAX FORM

1. Taxpayer Name(s):_______________________.

2. Total Tax Owed: ___________.

3. Additional Tax Owed ___________.

4. Remaining Amounts Owed ___________.*

* Tax Tip: Most amounts are in fact owed. If unsure whether a particular amount is owed, use the accompanying worksheet and perform this test: Write down the amount in the space provided. If it contains a digit larger than zero, it is an “amount owed” under Internal Revenue Code §28502.

5. Anything Leftover ____________.

6. Gratuity (18% for families of six or more) __________.

7. “I LOVE THE IRS!” TEESHIRT (specify size and color) $32.00 and one-year no-audit guarantee.

8. TOTAL AMOUNT DUE (add lines 1-7) ___________.

9. Amount of refund: [Do Not Write In This Space]

10. Do you like this new form? Check one: yes – no – like we really care

11. The life of an IRS agent is no picnic. Do you know what it feels like to be reviled? Check one: yes – no – only by my ex-boy/girl friend(s).

12. Can you spare five bucks for the half trillion dollar deficit? Check one: yes – no problem – anything for a pal (add to amount on line 8).

13. Estimated tax for 2005

14. Estimated income for 2005.

15. Attach check for amount listed on line 14.

IMPORTANT INFORMATION FOR TAXPAYERS

To obtain additional forms, find us on the World Wide Web at send.more.$$$.gov. Ordering additional forms is quick and easy. Due to overwhelming demand, receiving them is currently out of the question.

BIG SALE! Corporate Giveaways! Tax Shelters! Used Social Security numbers! All prefixes. Dining room set, baby clothes. Call and leave message.

Dog Daze

Originally appeared in the May 1998 issue of the ABA Journal.

Dog Daze

BY ANDREW J. McCLURG

Some people believe the animal rights movement is of recent origin, but the “one free bite” rule of tort law, which has long granted every dog the inalienable right to sink his teeth into human flesh at least once, proves this is not so.

Recently, the one free bite rule has been criticized for discriminating against humans, many of whom pay dearly for their bites. (If you think I would stoop so low here as to mention MARV ALBERT!!! or MIKE TYSON!!! just to get a cheap laugh, I am really hurt.)

The one free bite rule is actually a greatly misunderstood creature (much like Marv and Mike). A refresher course on this important doctrine is in order. First, beware that bites are not always “free” under the rule. Unscrupulous canines have been known to bill unwitting bitees for labor costs after the attack.

Even more disturbing, undercover K-9 agents in L.A. recently broke up a fraudulent mastication ring run by a gang of vicious Dobermans. According to a spokesmutt, the dogs were duping consumers with offers of “free bites at the apple,” failing to disclose that the gratuitous chomps were limited to “Adam’s apples.”

Most importantly, dog owners need to be aware that not all bites are covered by the rule. Here is the actual rule: A dog owner is liable for a bite only if he knew or had reason to know of the animal’s dangerous propensities. Test your understanding of the principle by solving this thorny multiple choice question:

Vic is the owner of Froo-Froo, a docile poodle who devoted all 72 dog-years of her life to chewing on a tennis ball and rolling over on command until she met Inga, an activist rottweiler down the street. After that, Froo-Froo’s personality changed dramatically.

The tennis ball now sits on the porch, in a puddle of disgusting green slime, while Froo-Froo stays holed up in her doghouse waiting for UPS deliveries that arrive at odd hours. Strange noises emanate from the doghouse around the clock: grinding, clanking, banging and what sounds curiously like snarling to the Curtis Mayfield tune “Superfly.” But whenever Vic goes to investigate, Froo-Froo pretends she’s not home and Vic is left to clean up the empty whiskey bottles piled outside.

One day a mysterious note appears in Vic’s mailbox, composed of letters cut (crudely, as if by paws) from a magazine: “HeLLo, Mr. ViC. Can U spell NEWTuR?”

The next morning, when Vic calls Froo-Froo out for breakfast she springs from the doghouse sporting spiked body armor and titanium fang implants. At that moment, the mailman arrives, pats Froo-Froo on the head cheerfully and says, “Roll over, pooch.”

In an action by the mailman’s survivors, Vic will:

(A) Win, if the jurisdiction adopts the new “one thousand free bites” rule.

(B) Lose, because Vic had reason to know of Froo-Froo’s dangerous propensities.

(C) Win, if Froo-Froo can intimidate the jury.

(D) Lose, because there’s no such thing as a free bite.

Canned Sincerity

Originally appeared in the June 1998 issue of the ABA Journal.

Canned Sincerity

BY ANDREW J. McCLURG

My colleague recently received a mail offer to purchase an amazing new book called The Someone Cares Encyclopedia of Letter Writing. This real book contains “over 525 thoughtful letters . . . for every conceivable occasion already written for you.” The “heartfelt” form letters cover everything from complaining about your kid’s soccer coach to offering sympathy for an “unnamed tragedy.”

What a great idea for lawyers! With all our form books, we’re still at sea when it comes to personal correspondence. Lawyers encounter lots of emotional situations where a heartfelt letter could prove invaluable. The decision to leave a law firm is a perfect example. Breaking the news to one’s colleagues can be agonizing. Think how great it would be to flip open a book and find a sensitive letter ready to be custom-fit to your situation:

Form 269: Law Firm Resignation Letter

Dear ________:

I regret to inform you that I am leaving the firm. Please don’t think my decision has anything to do with my [low salary/long hours/dislike for you personally/sexual harassment suit]. I’ve been thinking about this for some time and feel the timing is right given our recent [open and honest communication/frank discussion/bar brawl].

I can honestly say I’m going to [miss you/miss this place/miss your spouse/ruin your name/the beach every day]. I will take many things with me, the most important of which is [our friendship/a grudge I will hold for the rest of my life/the office furniture]. When I look back, the picture I will always remember is [the day you hired me/the first case we won together/the one I took of you at the firm party and keep in my safe deposit box].

To show my [appreciation/good faith/utter disdain for you], I plan to send you a [special gift/sizable check/dead cat].

Thanks for taking this so well. You are a true [friend/lawyer’s lawyer/##&$%%].

[Warmly/Sincerely/I’m Outta Here!]

Your Name

Such a personalized letter is likely to touch any former colleague and to prompt a similarly heartfelt response:

Form 270: Reply to Resignation Letter

Dear _______:

It is with a heavy [heart/handgun/stack of work you left unfinished] that I reply to your notice that you are leaving the firm. Your service here will never be [forgotten/forgiven/understood/discussed], no matter how long you have been gone.

We wish you lots of [happiness/good wishes/personal setbacks] in the future. If there is any way we may [be of assistance/enforce our non-compete agreement/be rid of you more quickly], please do not hesitate to let us know.

You can just stick your office key [on my desk/in the mail/where the sun don’t shine] and collect your final [congratulations/paycheck/humiliation] at the firm meeting on Friday.

[Warmly/Sincerely/Good Riddance]

Your Name

I don’t know about you, but I could really use a book like this. Like a lot of men, sometimes I’m simply too absorbed in important things like [my work/myself/watching sports] to feel. I’d much rather pay someone else to do it.

Hadley’s Reprise

Originally appeared in the July 1998 issue of the ABA Journal.

Hadley’s Reprise

BY ANDREW J. McCLURG

Lawyers think law professors have it easy, but teaching today’s students demands a wide range of skills: juggling, magic tricks and preferably a decent animal act. This generation has been force-fed flash and sizzle entertainment since birth. Videogames, MTV, action flicks, sitcoms, web sites … their entire lives are one huge neural stimulus.

But then law school comes along and pushes the pause button. No more action, just moldy old cases written in the most stilted prose imaginable. Take a classic contracts case like Hadley v. Baxendale. Insomnia? Just read this snoozer.

Hadley hired Baxendale to transport a broken mill shaft for repair. Because Hadley’s mill couldn’t operate without the shaft, time was of the essence. Baxendale transported the shaft for repair by canal and it arrived late, causing Hadley to lose business. Hadley sued for lost revenues, but couldn’t recover them because he hadn’t told Baxendale about his special circumstances.

The court starts out: “[A]t the last Gloucester Assizes, it appeared that the plaintiffs carried on an extensive business as millers at Gloucester; and that, on the 11th of May, their mill was stopped by a breakage of the crank shaft … blah, blah, blah.” From a reader interest standpoint, this introduction suffers from several flaws, not the least of which is that people hate sentences with “assizes” in them.

We need to update legal education to keep in step with modern consumer expectations. I propose that law schools hire writers to rewrite all old cases with the goal of making them more readable, more comprehensible and possibly into blockbuster movies. Here’s what a little sprucing up can do for a relic like Hadley v. Baxendale:

Shark attack! Baxendale watches in shock as the Great White, rare in English canals, rises from the dank water and devours the front of his boat.

He hadn’t counted on this. “Now I’ll be late delivering the mill shaft for sure.” Hefting the broken shaft as a harpoon, he dives in the canal to fight the shark, oblivious to the men in the black sedan parked on the barge following him.

Meanwhile …

Hadley pulls from Rita’s embrace. “I need time to think,” he says sullenly and retreats to the veranda with his glass of whiskey. Where was Baxendale? The fool was two days late arriving at Greenwich with the broken shaft. Everything depended on that shaft getting fixed on time. His career, the mill, his dark secret … Rita.

He feels her silky touch and turns to accept her waiting lips, all the while thinking: I should have told Baxendale this delivery was important, but I forgot.

Meanwhile …

Baxendale stumbles into the repair shop and collapses. Three days late, but it’s a miracle he made it at all. He had to drag the Great White twenty miles after it swallowed the mill shaft, on one leg. Why had he done it? For 2£, 4 s., and he wasn’t even sure how much money that was. Yet he risked his life. Risked everything … for Rita.

Peppier than the original, don’t you agree? If you have any thoughts about the big screen version, please do send them. Personally, I picture Robert Duvall as an irascible Baxendale, maybe Brad Pitt as a young, driven Hadley and definitely Sandra Bullock as Rita. I’d go see anything with Sandra Bullock, except maybe Marbury v. Madison.

Hep Catalogs

Originally appeared in the August 1998 issue of the ABA Journal.

Hep Catalogs

BY ANDREW J. McCLURG

With all the fuss over law school rankings, the question arises as to exactly what causes a school to get highly ranked. Experts have identified two principal factors: 1. Being Harvard. 2. Having a really good catalog.

Since lower-ranked schools are not Harvard, they need to work on better catalogs. I got one in the mail the other day that was so slick I thought it came from J. Crew and accidentally enrolled in a global studies program while trying to order the dean’s chino shorts. To compete in the modern marketplace, it’s important for law schools to invest in hip, student friendly catalogs.

Here are some suggestions:

Message from the Dean. Most law school catalogs begin with a message from the dean. These messages can be unbelievably boring (except for the one my dean wrote), jammed with platitudes (truly moving sentiments, sir) and suffer from chronic repetition of the word “tradition” (23 times really isn’t so bad, dean). Today’s applicants want a dean who can communicate openly and honestly about their academic concerns. Here’s a sample:

“Waz-up? It’s me, your Deanster, the Deanzilla of deans, MC Heavy D Dean, but you can call me Jeff. We all go by first names here because we see student satisfaction as our primary mission, way above teaching law.

“I, like, gotta keep this short ’cause I’m on my way to teach my Constitutional Law class. Today we’re studying the jurisdiction of the Supreme Court. Hurl-a-rama? No way, dudes. We’ll be jammin’ to a techno-laser show while we’re learning it.

“Paper Chase, Schmaper Chase, let’s talk Melrose Place …”

Curriculum. High-ranked schools offer lots of boutique courses addressing important issues in legal education: globalism, postmodernism, basically anything you can stick an ism on. This makes your catalog look dull if all you have are relics like Property and Income Tax. New courses cost a lot. Save money by dressing up the names of the old ones, making sure to include the proper buzz words.

For example, Income Tax has more panache as “Global Deconstructionism of Earnings In A Postmodernist Society.” If you really want to be on the cutting edge, be daring. Go beyond global, beyond postmodern. Rename Civil Procedure “Deep Space Pennoyerism In A Neo-Neffist Universe.”

Faculty. Applicants are very interested a school’s faculty. If your faculty lacks outstanding academic credentials, make up for it by emphasizing their other qualities. Example: “Professor Hal Weenicker, B.A., J.D., Brickyard University, tidy appearance, punctual, likes movies, walking and cats, never killed anybody.”

Academic Calendar. Most law school catalogs include an academic calendar, but many make the mistake of emphasizing negatives like tuition due dates and exam periods. Gain ground on the elite schools by fashioning a calender that appeals to young applicants:

Monday: Sleep In Late; Contracts; Rest Period; Lunch; Nap-time; Enfeoffment Mud Wrestling; Slumber Party at Dean’s.

Tuesday: Civil Procedure Coffee and Danish Drop-In; Jerry Springerism Alternative Dispute Resolution (prerequisite: proof of insurance); Lunch; Criminal Law Lecture Series: “The Defense of Mental Incapacity” (at Vino’s Bar).

Wednesday through Friday: Torts Snowboarding Trip and Review Session.

Saturday: “Casebook Recycling Day” to benefit Environmental Law Club.

Sunday: Student-Faculty boxing.

Suzy Assumes the Risk

Originally appeared in the September 1998 issue of the ABA Journal.

Suzy Assumes the Risk

BY ANDREW J. McCLURG

Suzy Spikes is joining a soccer team and the insurance industry is jittery. Suzy is my daughter’s litigious, histrionic and some might say irretrievably delinquent 11-year-old pal. You might recall the last time we checked in on her she was vigorously appealing her home detention for unlawful insertion of a Monopoly game piece into a neighbor’s nasal cavity (Feb. ‘98).

Insurers of the La Petite Soccer League agreed to let Suzy play only if she signed a strict code of conduct and exculpatory agreement. Since Suzy has been banned from every sports team in the state except the “Juvie Detention Center Fightin’ Tigers,” Art and June Spikes felt they had no choice but to acquiesce. The agreement should prove useful to lawyers confronted with other high risk situations involving dangerous animals, psychiatric patients or preadolescent girls:

Airtight Liability Agreement

The La Petite Soccer League (“La Petite”) and Suzanne Marie Spikes (“Probationer”) enter into this binding agreement, in consideration of which La Petite grants Probationer the privilege of participating in its soccer program and Probationer forfeits all of her legal rights:

1. Lawsuits conflict with the La Petite values of team spirit and cooperation and are forbidden by league rules. Probationer assumes the risk of any and all perceived injustices, feelings of persecution, preteen angst, gripes and grievances of any kind. To show her good faith, she shall dismiss her age discrimination claim against the Teeny Tiny College for Pixie Knowledge for making her take a nap when she was seven years old.

2. Probationer shall not share her views on the legal rights of children within 300 yards of La Petite.

3. Probationer shall be conclusively presumed to be the sole proximate cause of any physical injury, mental distress, casualty loss, vandalism, hostage situation or attorney’s fees occurring while she is on La Petite premises. La Petite shall be indemnified for all such losses.

4. Rulings by referees during league play are final and unappealable. Contrary to Probationer’s assertion, there are no “inalienable rights” in a soccer game. There are no rights at all. All rulings shall be accepted with a happy face and without verbally or physically assaulting the referees.

5. Probationer shall not aim soccer kicks at sensitive body parts of players, referees and especially coaches. In the likely event Probationer is expelled from a game, she shall not incite the crowd with chants of “Free Suzy Spikes” as occurred last summer at the Sock ‘Em, Chop ‘Em Karate Academy.

6. Probationer consents to random searches of her lunch box for her favorite snacks: Psycho-Amp Cola, Hunka-Chunka-Choco Chip Frisbees and Jetstream Sugar Bars.

Signed and Sealed this incredibly stressful day of September, 1998. (Against my will. Suzy.)

Postscript. League play got underway and Caitlin reports Suzy is excelling as a team leader. She scored four goals in a game last week, one of them legal. Her persuasive advocacy and hunger strike persuaded the coaches to change the team name from Daisy Girls to Marauding Femmes. She’s made lots of new friends, especially among the security guards. Her sports agent even bought her a new bike.

Agreeing to Disagree

Originally appeared in the October 1998 issue of the ABA Journal.

Agreeing to Disagree

BY ANDREW J. McCLURG

Ever notice how the Supreme Court can’t seem to agree on much? The court’s modern opinions are often a maze of fractured voting.

Rumor has it an early justice once proposed that unanimity be required in all decisions, but they voted on it and ended up split 1-1-1-1-1-1-1-1-1. They tried to settle it with Rock, Paper, Scissors, but one justice used real rocks and an ugly brawl broke out, after which the idea was dropped.

I can understand when the justices disagree about highly-charged constitutional issues, but they seem to rarely agree about anything.

Consider a case like Idaho v. Coeur d’Alene Tribe (1997), a dispute over the ownership rights to the bottom of a lake. No doubt this was important litigation, but it’s not exactly Marbury v. Madison, or even the lesser known Marbury’s Cousin Murray v. Madison. Yet look at the splintered voting record:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, and III, in which Rehnquist, C.J., and O’Connor, Scalia and Thomas, JJ., joined, and an opinion with respect to Parts II-B, II-C, and II-D, in which Rehnquist, C.J., joined. O’Connor, J., filed an opinion concurring in part and concurring in the judgment …

It goes on, but you get the idea. Way too confusing. At the end I expect to see, “See next month’s opinion for answer.” We need some clues to figuring out these mega-part opinions, something helpful like “PLAINTIFF WINS,” or better, “Instructions to User: Ignore everything except footnote 10.”

Unfortunately, things are getting even worse. Check out the voting lineup in the just-decided Weefus v. Dufus:

Kennedy, J., announced the judgment of the Court in which no one agreed except Mrs. Kennedy and even she wasn’t too crazy about parts of it. Scalia, J., booed.

Rehnquist, C.J., dissented vigorously from Part XXXVII-A,E,I,O,UandsometimesY-iiiiiiiiii until informed there was no such part, so he wrote his own and unleashed a vicious assault against it.

Breyer, J., concurred in Part II-A, dissented from Part II-B, was mildly amused by Part II-C, wadded up Part II-D and stuck it under his desk to keep it from rocking and used Part II-E to make paper airplanes that he and Thomas, J., shot down with rubber bands. Ginsburg, J., joined in the dissent from Part II-E so she’d have paper for her own planes.

Stevens, J., dissented, changed his mind and dissented from his dissent. On petition for reconsideration, he dissented from the dissent to his dissent, at which point he lost track of which side he wanted to win and abstained.

O’Connor, J., concurred in part in footnote six, dissenting from it not being numbered seven. Souter, J., dissented from O’Connor’s partial concurrence, stating: “The issue of whether footnote six should be renumbered was not raised in the trial court and is not properly before the Court.” O’Connor then filed a Supplemental Dissent canceling her RSVP to Souter’s dinner party on Saturday.

Part I of Conclusion To Humor Column: I should point out that I love Supreme Court justices. Part II: None of the above is intended to reflect on the personality of any particular justice. Part III: Except maybe one. Part IV: See next month’s column for answer.