Archive for September, 2012

photo: roberthuffstutter/flickr

note: This is a true account of how life changed for college-age students and college teachers in the immediate aftermath of President Roosevelt’s Infamy Speech of December 8, 1941, as told by Letty Owings, age 87. It is a continuation of this essay.

Everything changed on a Sunday. I had come home briefly from college where I was enrolled in a nature class. I wanted to collect some puffballs from the woods for my class. My father knew where to find these things so we went to the woods where they were, collected some samples, and returned home. I sat in a room with the sample collection, and my father went to the other room to listen to the wind charger radio.

He returned a few moments later and he said to me, word-for-word, “Honey, we’re in a war.”

How Life Changed After the Infamy Speech of 1941

After my father had listened to the wind charger radio and learned that we were in a war, he drove me back to college at Missouri Central University. Since the announcement did not affect our classes, I took the puffballs that I had collected from the woods for my nature class.

The Announcement at the Assembly

On Monday, December 8, 1941, the university called all of the students into Hendricks Hall. The school chose the large hall as a meeting place because it was the only building on campus large enough to accommodate 1000 students for an assembly. A man named H Roe Bartle delivered the speech. He was a large and imposing man and his physical presence at the podium added to his powerful delivery. H Roe Bartle read from President Roosevelt’s declaration of war on both fronts. He ended the speech by quoting from the English patriotic song written and distributed in 1939 called There’ll Always be an England, by saying the words, “There’ll always be an England and England will be free, if England means to you what England means to me.”

The atmosphere in Hendricks Hall at that moment was eerie. It was like electricity and so emotional that while some students cried, others just stared. Many jumped up to enlist. Boys just shy of graduating were anxious to abandon their schooling and had to be convinced to stay in school and graduate. Since there were no speech writers to temper tone in those days, what Roosevelt said, Roosevelt said. Both Roosevelt’s announcement and H Roe Bartle’s subsequent speech conveyed the same gravity and raw heartfelt shock that we all shared. We had no concept of war, no frame of reference. We had entered the meeting as one person and came out another, with the final understanding that yes, our lives have changed forever. America became mesmerized.

Conscription and Rationing

Following the announcement almost immediately, members of regular university faculty were conscripted according to the following formula: the Army, Navy and Marines came in took whoever they wanted and told them what to teach and where to teach it.

Even before the concepts of totally non-negotiable unconditional surrender and the declaration of war on both fronts sank in academically, the government instituted a rationing system in early 1942. Everything had to go to the military, and we were issued ration cards. Rubber was the first thing to be limited: no more tires, rubber boots or yard goods were sold for civilian use. Books, gasoline and sugar were rationed, and it was against the law to trade these things. Farmers could get a little more gasoline for their tractors, but they had to provide documented proof of how much they needed and what it was for. note: Here is a bit more on the rationing from wiki:

Of concern for all parts of the country was a shortage of rubber for tires since the Japanese quickly conquered the rubber-producing regions of Southeast Asia.[5]


Tires were the first item to be rationed by the OPA, which ordered the temporary end of sales on 11 December 1941 while it created 7,500 unpaid, volunteer three-person tire ration boards around the country. By 5 January 1942 the boards were ready. Each received a monthly allotment of tires based on the number of local vehicle registrations, and allocated them to applicants based on OPA rules.[4]:133

The War Production Board (WPB) ordered the temporary end of all civilian automobile sales on 1 January 1942, leaving dealers with one half million unsold cars. Ration boards grew in size as they began evaluating automobile sales in February (only certain professions, such as doctors and clergymen, qualified to purchase the remaining inventory of new automobiles), typewriters in March, and bicycles in May.[4]:124,133-135 Automobile factories stopped manufacturing civilian models by early February 1942 and converted to producing tanks, aircraft, weapons, and other military products, with the United States government as the only customer.[6] By June 1942 companies also stopped manufacturing for civilians metal office furniture, radios, phonographs, refrigerators, vacuum cleaners, washing machines, and sewing machines.[4]:118,124,126-127

There was no unauthorized use of the rationing system that I can remember. People adjusted to it in stride as something they were required and obliged to do. Abuse and treachery of the rationing system were not done because people had a feeling they might be hurting an officer if they cheated the system.

The Uniform as the Great Leveler

Within a short period of time, hardly any adult man was out of uniform. The men were in uniform whether they were walking on the street, attending church, shopping at the store or going about their daily business. Bellbottoms, khakis, lapel bars and hats were worn everywhere. In a way, the military uniform was a great leveler because men going about their daily lives were now part of something that they had not been part of before. There was some occasional fakery that went on when it came to dating, when, for example, a man would represent himself as rich and accomplished to a prospective date, only to have his wife eventually show up.

The uniform was important to the point where being a “civvy” required an excellent excuse or else drew extreme criticism. A boy I dated had graduated and was teaching math. He went to Scott Air Force Base to teach troops, but the troops ridiculed him because he was dressed in civilian clothing. Because of this, he enlisted and returned to the same job for less pay, where he was not the subject of criticism.

end note: H Roe Bartle went on to serve as mayor of Kansas City, Missouri for two terms. He was also an executive and an organizer for the Boy Scouts of America.

“After Bartle helped lure the Dallas Texans American Football League team to Kansas City in 1962, owner Lamar Hunt renamed the franchise the Kansas City Chiefs after Bartle’s nickname, “The Chief.””


us supreme court 4.10.06 - 8
photo: laura padgett/flickr

Today in the news is this article, titled Justice Ruth Bader Ginsburg Says Supreme Court To Address DOMA This Session. The subject of this post is an update of a pertinent case currently on the SCOTUS docket.

Hollingsworth (petitioner) v Perry (respondent) is a pending Petition for Writ of Certiorari currently on the docket before the Supreme Court of the United States. Perry prevailed by a ruling in the lower court and Hollingsworth now challenges that decision (Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)). The issue is whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Firedoglake covered the Prop 8 trial in depth, and there has been extensive media and blog attention to the case throughout its litigation history in the courts. To reiterate, Prop 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment) passed in November, 2008. Prop 8 was then challenged on constitutional grounds and overturned in United States District Court with an opinion by Judge Vaughn Walker. Finally, on February 7, 2012, in a 2–1 decision, the US Court of Appeals for the Ninth Circuit affirmed Walker’s decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. That opinion, written by Judge Stephen Reinhardt, is what the petitioner is challenging in the Petition for Certiorari (“cert” or “Petition for “cert”).

As you can see on, in addition to the initial petition, the briefs in opposition (here and here) and the link to the Ninth Circuit opinion, there are 13 Amicus briefs. There are also reply briefs to briefs in opposition.

The petition, the responses in opposition, the replies and the Amicus briefs have been filed in the Supreme Court. Clerks have reviewed them and distributed the incoming documents to chambers for the September 24, 2012 conference. Prior to the conference, Justices read and review incoming (distributed) material, at the rate of about 140 petitions each week, according to this certiorari practice article. During the conference, where only Justices are allowed to be in the room, they will make decisions about what to do with the petitions that they have reviewed. They can grant cert (agree to review the case), deny cert (the opinion ‘below’ stands unaffected), ‘relist and hold,’ where a case is held over for decision at a later date, or invite the view of the US Solicitor General (a CVSG or a Call for the View of the Solicitor General). On October 1, 2012, the decisions will be released in an “Orders List” on the Supreme Court site.

Bottom line in Hollingsworth v Perry: The Petitioner (Hollingsworth) is arguing for a grant of cert and an opinion from the Supreme Court that will set aside the opinion issued by the Ninth Circuit, and the respondent (Perry) is arguing for a denial of cert so that the opinion of the Ninth Circuit remains as the binding authority.

All of the petitions and Amicus (Latin: “friend of the Court”) briefs follow a standard format that contains the following: 1.title page with listed parties; 2. Question Presented; 3. Table of Contents; 4. Table of Authorities; 5. Argument; 6. Conclusion. There is a page limit of 30 pages.

Amicus briefs can only be submitted with specific permission from the court. You can look here to see how it is worded when permission is requested and granted. These briefs are not submitted by parties in the case. They are submitted by parties with interest in the case and outcome. Amicus briefs have been historically associated with various advocacy groups. It is worth noting that the ‘question presented’ in each brief is the lawyer’s opportunity to tell the Court what the issue is; the Court wants to know whether to grant or deny cert, and this is the lawyer’s shot at that. The question presented is persuasively phrased, and in some cases, the persuasion is evident in the Table of Contents and the Table of Authorities as well.

Here are examples, word-for-word, from petitions in this case. These are only snippets:

from Petitioner Hollingsworth, the question for the Court:


Whether the Equal Protection Clause of the
Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

from Respondent Perry, Brief in Opposition, the question for the Court:


Whether it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment for a State to use the ballot-initiative process to extinguish the state constitutional right of gay men and
lesbians to marry a person of the same sex

note on this next one. I found it curious that this next person did not use a spell checker for the question, especially given that this is the Supreme Court.

from Amicus brief of Center for Constitutional Jurisprudence, the question presented:


1. Whether the federal Constitution prohibits the people of a State from defining marriage as it has been traditionally understood, a union of one many and one women, when the procreative function that inheres in such relationships makes
them differently situated from same-sex relationships?

also, from the same brief, Table of Contents, reasons for granting (I of III):


I. The Holding Below Altering the Definition of
Marriage Is Monumentally Important. …………….. 5

A. Equal Protection Analysis Is Only
Triggered If People Who Are “Similarly
Situated” Are Treated Differently. ……………… 5

B. Fundamentally, The Issue Here is Who
Makes The Policy Judgment About the
Purpose of Marriage, The People, or the
Courts? …………………………………………………… 11

same brief, continuing to the Table of Authorities. There is a long list, but here’s the first:



Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ………………………………………….. 19

from Table of Authorities, listing the first few, from Brief of respondents Kristin M. Perry et al. in opposition:

Brown v. Bd. of Educ.,
347 U.S. 483 (1954) ………………………………………… 6
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) …………………………………. 31, 33
Citizens for Equal Prot. v. Bruning,
455 F.3d 859 (8th Cir. 2006) ……………….. 17, 24, 25

from Amicus brief of Public Advocate of the United States, et al., Table of Authorities (listing the first three, and this is amazing):



Genesis 1:26-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Genesis 5:1-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Ecclesiastes 11:5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCOTUSblog has a really nice compilation of the briefs that have been filed and distributed to the Court. Please go here to click on the links. Whether you are a layperson or a legal scholar, there is plenty to read in these documents to update yourself and form your owns thoughts about what could possibly be a United States landmark decision. If nothing else, the documents reveal a bit more about document formats and Supreme Court process.

So You Want to Go to Law School

Posted: September 18, 2012 in law

FDR Profile
photo: dctourism/flickr

This is a true account of wedding customs in a rural Missouri farming community prior to WWII, as told by Letty Owings, age 87. The account is limited to the small geographical area. Customs may have been different, twenty miles down the road.

The Shivaree and Farming Community Wedding Customs Prior to WWII

Most country weddings in our community took place in the home. The bride and groom dressed nicely, but there were no bridal shops or wedding dress makers. A preacher would come to the home to perform the wedding. Even if people were not churchgoers, the preacher would “marry and bury.” At the wedding ceremony, someone, usually a couple, would stand up as witnesses for the couple being married.

The usual refreshments and a small reception followed the wedding ceremony. A few days after the couple got settled, the community held a shivaree. The shivaree was a post-wedding noisy party for the community where the newlyweds were pressed into service as hosts. In short, the shivaree was a mock serenade and a roast of the newlyweds. People brought all sorts of noisemakers and pots and pans to bang on, and they sang songs and enjoyed refreshments, compliments of the newlyweds. Adding to the atmosphere of friendly ribbing and polite mockery, nobody bothered to dress up. Supposedly, the shivaree was spontaneous and clandestine. However, it was an organized spontaneous that wasn’t really a secret. Since the newlyweds were expected to provide the refreshments for their own roast, they had to know where to be and what time to be there. Community members organized the shivaree by word-of-mouth instructions. Everyone in the community had plenty of advance notice for this ‘spontaneous’ post-wedding party, and looked forward to the fun. Newlyweds looked forward to the noisy event as well, and they would have been insulted at not being forced to host the shivaree.

The marriage rate in the community was nearly 100 percent in those days. Not getting married was almost unheard of, and for the most part, people married their neighbors. Courtships lasted 1 1/2 to 2 years, and people rarely waited past age 22 to marry. Women were younger than men in almost all cases, so you might typically see a 19-year-old woman marry a 21-year-old man, give or take. During the courtship, the woman never, ever called or contacted the man to ask the man out on a date. Men initiated all the courtship contact.

There came a time when a lot of social customs were clouded by the war overseas. Word trickled in that there was a war raging in Europe. One must bear in mind that we had no television or organized press in our community at the time. We only got our first wind charger radio in 1938. Rumors spread, conversations ensued and people exchanged opinions. Some people took the position that the war raging in Europe was none of our concern. It was Europe’s war and Europe’s problem, not ours. After all, WWI had been a bunch of foolishness that we had no business getting involved in, and there was no need to repeat the foolishness. People voiced this opinion even as Churchill was down on his knees begging Roosevelt for help. Others countered this view with, “Yes, but there’s a crazy man Hitler and listen, this man is a maniac, the rumors are true, he’s killing Jews and he is a madman.” During this time there was a pall hanging over America and it extended to social functions in our small farming community.

No one ever came out and said, “There is a pall hanging over our social functions.” However, it was apparent. For one thing, people had a sense of unease about enjoying themselves at social functions while there was so much suffering going on in Europe, and the conversations often turned to that subject, even at the likes of a shivaree. Also, people began to be self-conscious about speaking German out and about. My father’s side of the family included ancestral illegal immigrants from Germany who did not care for German militarism of the time, so they bribed a ship captain and came to this country to escape it. They brought the language with them and the language sifted down through the generations, even to me as a young child. In one case, a boy’s folks did not want him going out with me, because of the German. It was lost on some folks that descendants of German people from generations past were a peaceful lot. The remnants of the language became associated with the current doings of a madman in Europe.

Everything changed on a Sunday. I had come home briefly from college where I was enrolled in a nature class. I wanted to collect some puffballs from the woods for my class. My father knew where to find these things so we went to the woods where they were, collected some samples, and returned home. I sat in a room with the sample collection, and my father went to the other room to listen to the wind charger radio.

He returned a few moments later and he said to me, word-for-word, “Honey, we’re in a war.”

note: hat tip to Ellie Elliott (@EllieElliottFDL) at for turning my attention to this beautiful piece.

US Supreme Court
photo: dbking/flickr

There are currently 2024 active cases on the SCOTUS docket. That is to say, 2024 Petitions for Certiorari have been distributed for the September 24, 2012 conference. Some of the petitions have gained public attention and are listed on a SCOTUS blog dot com site, Every single petition on the “petitions we are watching” list is from the paid side of the current SCOTUS docket. There are no IFP (in forma pauperis) petitions listed. The site is sponsored by Bloomberg Law and is not affiliated with SCOTUS. It is a dot-com and not a dot-gov site. It is interesting to note that a case will not qualify for “petitions we are watching” unless a response has been filed to the Petition for Certiorari, usually in the form of a Brief in Opposition (BIO) opposing cert (opposing the court’s grant of review). Additional responses, usually in the form of Amicus briefs (briefs filed with the Court’s permission arguing one side or the other) seem to bolster the chances of a case making this exclusive list. Here is an example, having to do with Prop 8 DOMA, in the pending Petition for Certiorari regarding Hollingsworth v Perry.

The indigent docket (IFP docket) is indicated in the numbering system. Petitions are assigned a number that begins with the year that the final appeal was exhausted in the lower courts, for example 11-XXXX or 12-XXXX. After the year is a dash followed by another number. If that number is greater than 5000, it indicates an IFP (indigent) petition. For random example, an IFP petition might be assigned the number 12-5100.

That the IFP docket constitutes such a large portion of the overall docket (“roughly half”) and yet gains little attention in pre-session publicity and in empirical post-session study alike is something that should be the focus of future Law Review writings. Granted, empirical analysis of the IFP docket is complicated by the lack of available information. Questions posed in IFP cert petitions, for example, are unavailable, as are any briefs that may have been filed.

In addition to IFP petitions having no chance of gaining public attention, there is much strategy involved when it comes to attempts to get the Court to ignore IFP petitions. This article states openly:

Your brief in opposition should be low key, befitting the trivial issue the petitioner has tried to foist on the Court. A tone of bemusement, of a patient adult dealing with a confused child, is about right. You will rarely need the full 30 pages (although a long brief showing in nauseating detail why a petition is uncertworthy may sometimes be thought effective to deaden any spark of interest in the case). “A brief in opposition should be briefly stated and in plain terms” (Rule 15.2), and focused on the precise problem at hand. This is not a place for an extended disquisition on the governing legal principles. As E. Barrett Prettyman, Jr., has warned, if the justices and their clerks finish reading your brief “more impressed with the importance of the case than they were when they finished the petition,” you have made a mistake. Prettyman, Opposing Certiorari in the United States Supreme Court, 61 Va. L. Rev. 197, 198 (1975).

Take pains to deter any would-be amici. You don’t need their help right now. Their participation at this stage would only serve to suggest that the petition raises an issue with broad impact, and would be self-defeating. Amicus support for a respondent — the opponent of certiorari — has been shown actually to increase the likelihood of a grant. Caldeira & Wright, supra, at 824, 828.


While I am certain that the highest Court in the nation is very aware of the various and sundry jockeying-for-position strategies and takes these strategies with a grain of salt, it would be interesting to see some recent studies on just what the strategies are. To me, the suggestion in the blockquote above constitutes bad advice. It is suggesting strategic ways to manipulate the Court’s attention away from legitimate issues and it is dishonest and transparent. I would think that the Court is not interested in games, and that it is unlikely to overlook an important legal issue because some lawyer intoned “bemusement, of a patient adult dealing with a confused child.”

End note and update on the upcoming session, unrelated to the topic of the post but interesting anyway:

The Supreme Court of the United States will be in session again as of October 1, 2012, the first Monday in October. The Marshall of the Court (Court crier) will make the formal announcement by saying the interjection “Oyez” (/ˈoʊjeɪ/) three times in succession. To hear a real example of the announcement, “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court.,” go here.

The Court will begin to hear oral arguments in cases that have been “granted and noted.” Granted and noted cases for this October and for Octobers past, as well as information about briefs and transcripts is available here.

Legal Employment for a Recent Law Grad

Posted: September 12, 2012 in law

Choctaw slave grave site

photo by amy_b/flickr

note: This is a true account of how a rural Missouri farming community handled death before WWII, as told by Letty Owings, age 87.

The customs and traditions pertaining to death in our community were in place prior to the Civil War and remained unchanged until after WWII. Prior to the Civil War, the land that would become our farm was multi-crop plantation territory where corn, wheat and clover grew. After the Civil War, the plantation area was divided into farms. Our farm was 160 square acres. We had no street address; we were part of a community that included a population of about 300 in the country and 600 in the nearby town.

A woman I knew named Minni had lived through the period prior to the Civil War, and I would often visit her and listen to her stories. On the way to her house, I passed a slave graveyard of about twenty graves that remained on the property. Many of the graves were simple stone markers indicating a child’s burial. In those days death was common among infants and young children in general, and it was not regarded with the same concern that it is today. It wasn’t that people were mean about it, they were just more honest. In other words, deaths of infants and children were almost expected. Causes of death among slave children in particular were never noted or studied during that time, although looking back one can speculate that tuberculosis, pneumonia, and other diseases and childbirth complications common to that era for all children may have been the cause. We must bear in mind that penicillin was not available until after WWII.

Although the Civil War ended slavery, it did not end segregation, nor did it end mindsets, attitudes or plantation thinking. There was no end to segregation until Martin Luther King came along. Minni’s aristocracy mindset was evident in her velvet curtains with beads and her velvet chair and velvet footstool, and in her marriage to a man named George. George had not hailed from the upper echelon of plantation hierarchy, and Minni never let him forget it. While George tended to the chickens, for example, Minni stayed inside on her velvet throne, reminiscing.

One day, George died. Death in those days was in the living room. There were no funeral homes before WWII, so when someone died, an embalmer, usually the local undertaker, came to the home, embalmed the body, placed it in an open casket and took the casket to the living room. The body was never removed from the house before the funeral. Death was also a community affair, so when someone died, a person rang the phone six times on a party line to spread the news. The local German Evangelical Church in the community, on receipt of news of a death, would ring the church bell one time for each year of a person’s life. This practice of ringing the bell was repeated at the funeral. As the casket was carried into the church, the bell chimed one time for each year of the person’s life. There was only one possible exception to tradition that I remember. Someone shot a man named Red in the middle of the day, in the middle of town. The news spread by word of mouth in the form of “Someone shot ‘Ole Red today,” followed by the reply indicating consensus that went something like, “Good riddance.”

After death and embalming, while the body waited in the living room, the custom at the time was never to leave the body alone. People were assigned the duty of ‘setting,’ which amounted to sitting with the body, in shifts. Death was all a part of life, and I mention these customs because most kids today have probably never seen a body. As kids in those days, we might be assigned to sit with the body for a couple of hours during the day. Night shifts were arranged among the men in the community who would ask each other, “Who is setting up tonight?” My father often took the duty. He also sat with the dying. The person doing the night duty would light a candle at each end of the coffin, and sit all night with the body.

Minni did not want to attend George’s funeral, but my father forced her to attend. My father saw no distinction in a person’s worth based on economic status or social class. He saw everyone as equal. In the end, Minni attended the funeral.

My father also took the position that all people were equal regardless of the color of their skin, which was remarkable for the time. Racism was not delineated as unacceptable in those days. Rather, it was an integral and accepted part of the culture, so much so that we had no other perspective. My father forbade the use of the n-word in any conversational utterance. That my father’s view was a dramatic departure from acceptable norms of the times became apparent many years later.

US Supreme Court
by dbking/flickr

The Supreme Court Of the United States (SCOTUS) has virtually unlimited power that is difficult to quantify. This has been true since the fourth Chief Justice, Justice Marshall. Even though landmark decisions from the United States Supreme Court shape and radically transform our lives, we may not know much about their or path to the Supreme Court in the first place. These decisions often trace back to individual citizens. Miranda, written by Chief Justice Earl Warren in 1966, for example, essentially addressed detainment and torture. Dred Scott, which prevented blacks from citizenship and access to the courts, was voided after the Civil War with the Thirteenth and Fourteenth Amendments.

The Supreme Court

The Supreme Court of the United States is a discretionary court with ultimate appellate jurisdiction, and it has nine Justices: Chief Justice Roberts (hence the name “The Roberts Court”), and Associate Justices: Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. SCOTUS Justices serve on the high Court for life and there are currently three living retired Justices: John Paul Stevens, Sandra Day O’Connor, and David Souter.

The Roberts Court is a conservative Court: Justices Roberts, Scalia, Thomas and Alito are conservative; Ginsberg, Breyer, Sotomayor and Kagan are liberal; Kennedy is considered to be the conservative swing vote.

The Cert Pool and the September 24, 2012 Conference

On September 24, a conference is scheduled in the United States Supreme Court, where a miniscule handful of legal cases on appeal will be chosen from many hundreds for a review. Being in the group (called the “cert pool”) can lead to weeks of insomnia and hopelessness even given the academic awareness of long odds. One is far more likely to be struck by lightning. Out of 8000 or so yearly cases, there may be decisions in only 150 cases, with full written opinions in 60-70, give or take. Statistics on 2011 opinions and dissents are here.

How cases get to the United States Supreme Court