Dictionaries Most Cited by Law Reviews?

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Veterans Day 2009: Applebee’s and Rudyard Kipling

As Marines, we get a full two-day boost of testosterone and nostalgia each November - the Marine Corps birthday is November 10th, and Veterans’s Day is November 11th (and, as one version of the saying goes, there are no ex-Marines, only Marines no longer on active duty). Having already been pleased this past summer that all veterans can get 10% every purchase at Lowe’s EVERY DAY (unlike the holiday-only veteran’s discount at Home Depot), I was - belatedly, too late to take advantage of it - pleased to learn Applebee’s is giving all veterans and active duty military personnel a free choice of six of their basic entrees.

I could have had one of my semi-annual steaks today. If I knew where there was an Applebees around here. No where here in the city for sure, maybe our in the ‘burbs. Funny thing is, as much this may cost them, I don’t see that they’re being too strict about it. The official details state that their standards of “Identification” are pretty loose:


“Photograph in uniform?” Does she qualify? I wonder if they report how many vets took them off on this offer.

I probably read less than five poems a year, and most of those are random stuff in the New Yorker just remind myself that I hate that crap. But this morning, I pulled my Rudyard Kipling book down and re-read Tommy, his testament to the two-faced attitude towards men in uniform under the British Empire. A representative stanza of the whole thing is:

Yes, makin' mock o' uniforms that guard you while you sleep
Is cheaper than them uniforms, an' they're starvation cheap;
An' hustlin' drunken soldiers when they're goin' large a bit
Is five times better business than paradin' in full kit.
Then it's Tommy this, an' Tommy that, an' "Tommy, 'ow's yer soul?"
But it's "Thin red line of 'eroes" when the drums begin to roll,
The drums begin to roll, my boys, the drums begin to roll,
O it's "Thin red line of 'eroes" when the drums begin to roll.

The official - I guess its official - web site for Kipling has some great information about this poem. One interesting tidbit is that the newsletter of the Veteran’s Law Section of the Federal Bar is called Tommy after this poem. The web page also includes both a similar sentiment in verse that preceded Kipling’s take on treatment of members of the military:

In times of war, and not before,
God and the soldier men adore;
When the war is o’er and all things righted,
The Lord’s forgot and the soldier slighted.

And part of a modern update:

O then we're just like 'eroes from the army's glorious past.
Yes, it's "God go with you, Tommy," when the trip might be your last.
They pays us skivvy wages, never mind we're sitting ducks,
When clerks what's pushing pens at 'ome don't know their flippin' luck.
"Ah, yes" sez they "but think of all the travel to be 'ad."
Pull the other one. Does Cooks do 'olidays in Baghdad?
It's Tommy this, an' Tommy that, an' "Tommy, know your place,"
But it's "Tommy, take the front seat," when there's terrorists to chase.

Amen. Of course in legal education, the professors don’t advocate chasing down the terrorist: they would prefer that the a lawsuit be brought against the Taliban in the International Court of Justice under the 1971 United Nation Convention on Aviation Sabotage. (And some day, I swear, I will find that listserv posting where this was urged.) What’s the corporate agent for the service of process for the Taliban? How would the U.S. go about requesting the execution of a summary judgement after they don’t show up?


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Happy Birthday, USMC

In my second annual Marine Corps birthday posting, here's another well-worn humorous piece you can find floating around on-line, and which probably pre-dates the internet by a good bit:

Letter Home from Marine Corps Bootcamp

Dear Ma and Pa,
I am well. Hope you are. Tell Brother Walt and Brother Elmer the Marine Corps beats working for old man Minchby a mile Tell them to join up quick before all of the places are filled. I was restless at first because you got to stay in bed till nearly 6 a.m. but I am getting so I like to sleep late. Tell Walt and Elmer all you do before breakfast is smooth your cot, and shine some things. No hogs to slop, feed to pitch, mash to mix, wood to split, fire to lay. Practically nothing. Men got to shave but it is not so bad, there's warm water. Breakfast is strong on trimmings like fruit juice, cereal, eggs, bacon, etc., but kind of weak on chops, potatoes, ham, steak, fried eggplant, pie and other regular food, but tell Walt and Elmer you can always sit by the two city boys that live on coffee. Their food plus yours holds you til noon when you get fed again. It's no wonder these city boys can't walk much. We go on "route marches," which the platoon sergeant says are long walks to harden us. If he thinks so, it's not my place to tell him different. A "route march" is about as far as to our mailbox at home. Then the city guys get sore feet and we all ride back in trucks. The country is nice but awful flat The sergeant is like a school teacher. He nags a lot. The Captain is like the school board. Majors and colonels just ride around and frown. They don't bother you none. This next will kill Walt and Elmer with laughing. I keep getting medals for shooting. I don't know why. The bulls-eye is near as big as a chipmunk head and don't move, and it ain't shooting at you like the Higgett boys at home. All you got to do is lie there all comfortable and hit it. You don't even load your own cartridges. They come in boxes.

Then we have what they call hand-to-hand combat training. You get to wrestle with them city boys. I have to be real careful though, they break real easy. It ain't like fighting with that ole bull at home. I'm about the best they got in this except for that Tug Jordanfrom over in SilverLake. I only beat him once. He joined up the same time as me, but I'm only 5'6" and 130 pounds and he's 6'8" and near 300 pounds dry.
Be sure to tell Walt and Elmer to hurry and join before other fellers get onto this set up and come stampeding in.

Your loving daughter,
Carol

Happy 234th Birthday, to my beloved Corps! Semper Fi!, etc., etc...

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October Netflix Report

October 2009 Netflix Summary	Arrived at Home	Received at Netflix	Days at Home	Monthly Average Days at Home	Cost Per Movie
Babel	10/01	10/03	2
Away We Go	10/06	10/08	2
Wait Until Dark	10/06	10/23	17
Sir, No Sir	10/13	10/23	10
The Girlfriend Experience	10/19	10/23	4
The Fountain	10/24	10/31	7
Amores Perros	10/24	11/10	17
The Children's Hour	10/24	11/05	12
FTA	10/26	11/05	10
				9.0	$2.06

Nine Netflix movies this month. Babel and Ammores Perros were the best two of the bunch, and I didn't realize until after I saw them that they were made by the same director: Babel came up because its one I missed when it was out, and Amores Perros is one of several cities set in Mexico City that I've been watching in "preparation" for the early vacation my wife and I are taken there two weeks before Christmas. She didn't want to watch Amores Perros after the opening dog-fighting scenes, so I watched that by myself and those scenes indeed - and there were worse to come - were harrowing, but it was an excellent flick and, duh, you can see how it and Babel are similar in structure and scope. The Fountain was the other really good movie in the bunch, and both Wait Until Dark and The Children's Hour are two more in our efforts to watch all the Audrey Hepburn movies on Netflix.

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How Prevalent is Plagiarism of Unpublished Decisions?

After the situation with the professor who was cribbing the summaries and quoted language from unpublished opinions without seeing the actual opinions or citing the sources in which he read the summaries and quoted language (see earlier post), I got to thinking about this. It is, of course, possible that an author might come across a reference to an unpublished opinion, track it down somehow, read it, summarize it, cite it, and include it in whatever article you’re working on, but I would bet anything that what happens more often is that an author reads an article or book that does a good enough job of summarizing the unpublished opinion and the author doesn’t bother to track down the opinion, but just cribs the summary and quoted language without citing to the original source where they found the discussion of the unpublished opinion that they’re stealing.

So I was curious if I could find an example of this, just by searching for articles that quote language from unpublished opinions. Turned up at least one so far, in a unrelated bit of work where I noticed the following discussion of an unpublished decision.

In this student note from the Michigan Law Review:

Jennifer L. White, When It's OK to Sell the Monet: A Trustee-Fiduciary-Duty Framework for Analyzing the Deaccessioning of Art to Meet Museum Operating Expenses, 94 Mich. L. Rev. 1041 (1996)

There’s a discussion of several unpublished cases at footnote 23:

23 There have been relatively few court cases dealing with deaccessioning. Judges tend to give one-time orders that do not provide insight into their decisionmaking processes and, as a result, offer no direction for future applicability. See, e.g. [...] Hammond Museum, Inc. v. Harshbarger, No. 92E- 0067-G1 (P. & Fam. Ct. Essex County, Mass. Oct. 5, 1992) (issuing no opinion, only a judgment stating that the museum was authorized to make the sale, to use the proceeds to pay off a bank loan, and, “if residual funds are available, to preserve the remaining artifacts of the museum and purchase similar ones, and do repairs, maintenance, and to make necessary improvements on the museum's real estate insofar as any of these are necessary to keep the museum open and functioning”)

(Emphasis added.)

So this student at law school in Michigan quoted language from a four-year-old unpublished Massachusetts county court decision. Did she actually get a copy of the case? Possible, but not likely. But poke around for the quote and you’ll find this:

Elaine L. Johnston, Deaccessioning to Raise Operating Funds: Recent Cases, in Legal Problems of Museum Administration, American Law Institute - American Bar Association Continuing Legal Education ALI-ABA Course of Study March 24, 1993

Which says, at 173:

The Massachusetts Attorney General consented to the Hammond's proposed deaccessioning, and the Court granted the Museum's request for approval. The Court did not issue a written opinion, but stated in its Judgement that the Museum was authorized to sell the designated artifacts and to use the proceeds from the sale to pay off the bank loan and, “if residual funds are available, to preserve the remaining artifacts of the museum and purchase similar ones, and do repairs, maintenance, and to make necessary improvements on the museum's real estate insofar as any of these are necessary to keep the museum open and functioning”.

So the Michigan law student “quotes” the exact same language as the CLE author. Coincidence? Not likely. Lazy student dancing way too close to the line between sloppy research and plagiarism? Very likely.

Also, the student’s summary of the case that precedes the quoted text:

[I]ssuing no opinion, only a judgment stating that the museum was authorized to make the sale, to use the proceeds to pay off a bank loan [...]

Is only a slight re-working of the CLE author’s summary:

The Court did not issue a written opinion, but stated in its Judgement that the Museum was authorized to sell the designated artifacts and to use the proceeds from the sale to pay off the bank loan [...]

This is what I see our students do fairly regularly when they ask me to find some obscure document or case and it turns out they’ve already used it in some paper, but only read ABOUT it in some other resource but now need the original thing because a faculty member, or one of the journal editors, wants some other detail for the citation or something that the intermediary source where the student found the document or case did not contain.
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