Questions of Professionalism

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I’ve been thinking about professionalism lately.  Two discussions in the past week or so have stuck with me.

The first discussion appeared in the Law Librarian Blog (thank you, Professor O’Brien, for forwarding it.)  In Florida, U.S. District Court Judge Gregory Presnell issued an order denying a plaintiff’s motion for voluntary dismissal for

Failing to comply with Local Rule 3.01(g), for failing to secure a stipulation of dismissal from Defendant pursuant to FED. R. CIV. 41 (a)(ii), and for otherwise being riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible.

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Gableman Prognostication

Yesterday a three judge panel heard oral arguments on the disciplinary complaint against Justice Michael Gablemen. You can review the offending ad here and my recent discussion of it on Prawfsblawg there.

There are two rules that are pertinent. The first sentence of 60.06(3)(c) provides “[a] candidate for a judicial office shall not knowingly or with reckless disregard for the statement’s truth or falsity misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.” This is the proscription that the Judicial Commission says was violated by the Mitchell ad.

But there is a second sentence. It states that “[a] candidate for judicial office should not knowingly make representations that, although true, are misleading, or knowingly make statements that are likely to confuse the public with respect to the proper role of judges and lawyers in the American adversary system.”

The difference between “shall” and “should” is significant. The preamble to the Judicial Code states that “[t]he use of “should” or “should not” in the rules is intended to encourage or discourage specific conduct and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.” (emphasis supplied)

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Learning About Law . . . by Watching Football?

instant replayWho knew you could learn so much about jurisprudence from the NFL rulebook?  In a new paper on SSRN, Chad Oldfather (Vikings fan) and 3L Matthew Fernholz (Bears fan) demonstrate that it is surprisingly illuminating to compare and contrast the rules of instant replay with the rules of appellate review.  Their title says it all: “Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review.”  Here is the abstract:

During his confirmation hearings, Chief Justice John Roberts famously likened the judicial role to that of a baseball umpire. The increased prevalence of video evidence makes it likely that judges will find another sporting analogue for their role – that of the instant replay official in the NFL. (Indeed, many have already done so.) This Essay explores the analogy. In so doing it seeks not only to consider its appropriateness in a narrow sense (much as many commentators considered the appropriateness of the Chief Justice’s analogy), but also to conduct something of a comparative analysis and thereby to use it as a vehicle for illustrating some general characteristics of a process of decisional review.

This is a fun and — only six days until the Packers’ season opener! — timely article.

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