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What started out as small judicial order in a small case has become a widely traveled news item in the media and across the Internet. The story concerns a federal judge in Orlando who was having a hard time resolving a discovery dispute. He ordered the attorneys to go out and settle it themselves over a game of rock, paper, scissors. Websites and newspapers across America and in Europe reported the incident as one of those cutesy innocuous stories you see sometimes. The Volokh Conspiracy put the story in perspective, analyzing the arbitrary nature of many judicial decisions. Volokh mentioned the case of a Michigan judge who was censured for being unable to render a verdict without the aid of a coin toss. This all begs the grammatical question of what is the correct way to punctuate rock, paper, scissors. Volokh skirts the issue by using the more cosmopolitan name roshambo (Fr. reauchambeaux); but other sources call it rock/paper/scissors, rock-paper-scissors, and even the unrefined rock paper scissors. The jury, it seems, is still out on that one. The best news controversy of the week, for my money, is the alleged falling out between Scalia and Alito. During Alitos Senate confirmation hearing, it was predicted that Alito would be Baby Scalia, following in the arch conservative jurists footsteps. But it seems a rift has emerged. The media has made a bigger deal out of it than need be, most likely. But in an age when Jessica Simpson vs. Lindsay Lohan and Nicole Richie vs. Paris Hilton pass as celebrity feuds, its nice to see one of substance. Earlier this week, Alito wrote the courts unanimous opinion in Zedner v. United States, which involved a dispute regarding the Speedy Trial
Act. Alito cited legislative history, much to Scalias chagrin. Scalia had spoken out against interpreting Congressional acts in decisions previously, and he rebuked Alito for it in his concurrence. Underneath Their Robes is calling it a judicial bitch slap. Because the use of legislative history is illegitimate and ill advised in the interpretation of any statuteand especially a statute that is clear on its faceI do not join this portion of the Courts opinion. - Scalia Alito had the chance to appease Scalia by removing the offending paragraph, but opted not to do so. Orrin Kerr stated that this is evidence that Alito will not wind up being the conservative extremist many predicted him to be. At the very least, dont call him Scalito.
take particular umbrage at the notion that it requires an act of Congress. They do concede, however, that the Justices, not their clerks, should be writing their own decisions. Marty Schwimmer of the Trademark Blog was tapped by Blawg Review to write this weeks summary of notable law blog activity. While the weekly Blawg Review is usually a list of links, he chose to instead author a scathing indictment of the illegality of American domestic and international activities. Schwimmer touches on everything: Guantanamo Bay, Bushs State of the Union announcement that Saddam had attempted to buy yellow cake enriched uranium from Niger, the NSA wiretaps, the Valerie Plame leak, torture in Iraq, etc. In the end, were not left with any answers, just more questions. Finally, on Evan Schaeffers Legal
Monthly proposes that Congress should do away with the U.S. Supreme Courts law clerks. Supreme Court Justices have it too good, what with their extensive world travels and summer vacations. The Atlantic Monthly suggests that eliminating clerks for the U.S. Supreme Court would force the Justices to really work for their money, as well as remove much of the political context from the Justices decisions. The authors of the piece presuppose that the Justices themselves are above the sway of politics, but the kids who work for them stay up late sneaking political agendas into each Justices decisions. The gang at SCOTUSblog questions the sincerity of the authors and doubts that getting rid of Supreme Court clerks would be much of a benefit. They
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