Them Dumb Bones


In Judaism, there is a tradition known as “building a fence around the law.” As the page linked in that last sentence indicates, it derives from a verse in the Tanakh — the Hebrew scriptures known to Christians as “the Old Testament” — specifically from Leviticus 18:30.

Leviticus, as you may know, is a favored book of the Republican Party because it tells them not to tolerate homosexuals and to avoid eating shrimp or lobster at fundraisers.  According to them one of those rules is absolutely applicable to the modern world.

But I’m not really going to get into politics here: this post is about the negative aspects of building fences and how this can as easily choke the law and divorce it from the intent behind it as it can protect it. [Read more...]


If Worms Carried Shotguns


There is a saying in the legal community that “hard cases create bad law.”  When I was young, whenever I would explain my behavior as contingency planning based on the possibility that something might happen, my father had a saying of his own.  In response to my “if this happened” or “if that happened” reasoning, he would state the following maxim:

If worms carried shotguns, robins wouldn’t eat them.

Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating.  As a rational adult attorney, I have found myself quoting this maxim with some regularity.

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Are Americans Just Mean and Stupid?


On page one of today’s San Francisco Chronicle, above the fold, is another article concerning California’s prisons.  If I did the math right, California’s prisons hold 7.2% of the nation’s prisoners, which currently number about 2.29 million.  (Today, with more than two-and-a-quarter million prisoners, the United States has the world’s highest documented incarceration rate. Even with its supposedly-high level of political oppression, China is number two with only 1.5 million.  The United States holds just 5% of the world’s population, but 25% of the world’s incarcerated population.)

Why so much?

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