Divorces are messy things.

The kids, the finances, the house, sometimes even the dog.

But who the hail cares about that stuff -- to me the most important issue is who gets custody of the x-rated pictures:

When a marriage goes bad, who gets the X-rated photos of the wife? In the case of Valeria Gentile and Erwin Cajamarca, the wife says she does.

She sued her soon-to-be-ex-husband last week in state circuit court in Sanford, accusing him of putting the photos on a Spanish-language porn site, distributing them via the Internet and, at times, using them during on-line sex chats.

The whole thing is humiliating, cruel and an invasion of her privacy, her suit alleges. Thousands of people have now seen her in a variety of sexual poses. She's demanding an unspecified amount of money.

Cajamarca, 39, an investment consultant, would not discuss the dispute, except to say that his estranged wife knew he was publishing some of the photos.

He took them with her consent before their marriage went sour, according to the suit.

So whose property are they?

They belong to both husband and wife, said Mitchel B. Krause, a Longwood divorce attorney.

This dispute, he said, it not uncommon among divorcing couples. Sometimes, ownership of these kinds of photos is one of the most contentious issues facing a divorcing couple, he said.

Usually, the spouse who'll be most embarrassed by them agrees to surrender other property to get them, he said.

"The husband will get the picture of the dog, the cat and the house and wedding photos, and the wife will get the other photos," he said.

Hmm, Longwood.

You know, I know a very good attorney in Leesburg who might be just the guy to handle this case -- you should look him up.

Well, I don't know about you but I'm sick and tired of being sick and tired, so I am out of here for some early windsurfing.

Conditions appear to be very favorable.

On my plate for this weekend is going back to school, moving energy from my second chakra, and, as always, trying to keep kosher.

Have a great weekend everybody!

Most people are aware of (sick of?) Steve Zack's Claude Pepper impression.

Less known is my spot-on impression of friend and noted mensch Burton Young.

Sure it sometimes lapses into a passable George Burns, but when you think about it, so does Burt.

Anyway, Burt knows what he is talking about, and has this to say about the ban on gay adoption in Florida:

Florida’s bizarre “law” was passed more than 30 years ago during the anti-gay hysteria of Anita Bryant’s Save Our Children campaign. The ban on gay adoption was borne out of prejudice, plain and simple. It had no scientific predicate. Its backers were nothing more than lynch-type rabble rousers.

On an unrelated note, people are still writing angry letters about George L. Metcalfe's "ad" in the Florida Bar News.

I like how Burt cites his possible contemporary Charles Dickens:

“If the law supposed that,” said Mr. Bumble, …”the law is an ass …” (Dickens, Pickwick Papers, [1836-37]).

Indeed.

Hi kids!

Anybody remember George Metcalfe?

He's the Leesburg lawyer who generated some significant commentary on this blog when he wrote a demure, entirely uncontroversial letter that was published in the Florida Bar News back in May.

That letter had some pretty vanilla statements like this:

Ultimately, nothing is as repulsive and emasculating to adolescent boys as being recruited for gay sex.

He also had this to say:

Holding vulnerable foster children like human shields to support homosexual adult social-engineering agendas is reprehensible. The Florida Bar’s Family Law Section and its amicus curiae appellate filings seek to endanger fatherless children for its own political ends and nothing more.

So things got a little heated but George stepped into our little forum and defended himself and everybody pretty much forgot about the whole thing.

Well, everyone but George.

You see, apparently interested in keeping the conversation going, George put the ad you see above ("What's so gay about it?") in the July 15th edition of the Florida Bar News.

Those of you who don't frequent adult sites on a regular basis may want to avert your eyes.

Ok -- you all can look (click on the ad to enlarge).

It's been a while since I took a philosophy class, but I think George commits the logical fallacy of "wow, what an awful, possibly unbelievable story -- guess it must apply to everyone."

Some of you long-haired, pot-smoking, Pink-Floyd-listening philosophy majors might call it the fallacy of "Hasty Induction."

Here's an example:

1. George lives in Leesburg.
2. There are lots and lots of gay men in Leesburg.
3. Well, I'm gonna stop right here, I think I made my point.

Anyhoo, some lawyers were somehow upset with George's advertised tale of gay parental woe, and some even wrote in to the Florida Bar News.

I like this one best, by Meredith A. Hart:

[]I would like to say “kudos” to George Metcalfe, the author of the “advertisement.” I applaud your courage, integrity, and insight into human behavior for pointing out that heterosexual couples have indeed cornered the market on morality, sexuality, and childrearing. Everyone knows that heterosexuals are never lousy parents, never descend into depression or suicide, don’t molest children, don’t abuse their families, are never promiscuous, and don’t catch STDs or die from AIDS; everyone knows AIDS is only a gay disease.

I also applaud your use of personal anecdotes to condemn an entire group of people. Lastly, it should be noted for the record that the current wards of the state are the exclusive products of the heterosexual relationships that the author is advocating for. So much for family values.

I am eagerly awaiting the next issue of The Florida Bar News. I never realized that as long as you pasted the word “advertisement” over an op-ed piece, that anything can be published, no matter how bizarre. I am expecting a series of thoughtful and stimulating “advertisements” in upcoming issues such as Heinrich Himmler: The Comic Genius of the Third Reich; The Lighter Side of the KKK; and Charlie Manson: The Misunderstood Musician.

Nice attempt Meredith, but try harder.

For your information, it was well-known in the bunker that Himmler had devastatingly perfect comic timing, and Charlie did in fact record some decent songs with Dennis Wilson, so your suggestions and George's ad indeed share the exact same factual basis.

Folks, below is a guest post from a well-regarded, talented and successful South Florida litigator, who has kindly submitted the following contribution for your Thursday afternoon entertainment:

Florida must recognize out-of-state adoptions by gay couples even though its laws ban such adoptions, a state appeals court in Lakeland has ruled.

Sarasota Circuit Judge Donna Berlin erred when she wouldn’t recognize a former lesbian couple’s adoptions when the women lived in Washington state, the 2nd District Court of Appeal ruled unanimously Wednesday.

Florida is the only state that prohibits all gays from adopting. But the judges said the U.S. Constitution requires the state to give “full faith and credit” to the actions of other states, and there is no public policy exception to that requirement.

While living as a couple in Seattle, Kimberly Ryan and Lara Embry each gave birth to a child. Each then adopted the other’s child as the second parent. They moved to Sarasota and later agreed to share custody when they split up.

Ryan became engaged to a man and cut off contact between her biological child and Embry, saying that under her new Christian beliefs she didn’t think the relationship was good for the child. Embry sued for custody.

The lower court sided with Ryan, ruling the Washington adoption had no legal standing because Florida bans gay adoption and marriage.

The decision written by Judge James Whatley said Embry “must be given the same rights as any other adoptive parent in Florida.” Judge Craig Villanti concurred.

Judge Carolyn Fulmer said in a specially concurring opinion that the same-sex relationship was irrelevant.

Those wacky Florida liberal judges, they must be sniffing glue, or sharpies, taking into consideration the parental bond formed with adoptive children.
Speaking of sniffing sharpies, check out this recent exchange with Justice Scalia:

MR. WRIGHT: Once you had reason to suspect a student is possessing any contraband that poses a health and safety risk, then searching any place where that contraband may reasonably be found is constitutional, and --

JUSTICE SCALIA: Any contraband, like the black marker pencil that -- that astounded me. That was contraband in that school, wasn't it, a black marker pencil?

MR. WRIGHT: Well, for sniffing.

JUSTICE SCALIA: Oh, is that what they do?

MR. WRIGHT: It's a permanent marker.

JUSTICE SCALIA: They sniff them?

MR. WRIGHT: Well, that's the -- I mean, I'm a school lawyer. That's what kids do, Your Honor, unfortunately, Your Honor.

JUSTICE SCALIA: Really?

So sharpie-sniffers, see you all at the Love-In at Greynolds Park on Sunday, where you libertine tie-dyed hedonists can drive guys like George to step it up a notch and this time write a really controversial letter to the Florida Bar Journal.

Hi kids, before we begin our journey like a circle in a spiral, like a wheel within a wheel, never ending or beginning, on an ever-spinning reel, as the images unwind, like the circles that you find
in the judicial windmills of their minds, I want to talk about George L. Metcalfe.

George is a lawyer from Leesburg who got his letter published in the Florida Bar News.

Hooray!! Now everyone can learn more about George.

For example, George may in fact be an expert in child psychology:

Ultimately, nothing is as repulsive and emasculating to adolescent boys as being recruited for gay sex.

Umm, ok George, if you say so.

Anything else:

Holding vulnerable foster children like human shields to support homosexual adult social-engineering agendas is reprehensible. The Florida Bar’s Family Law Section and its amicus curiae appellate filings seek to endanger fatherless children for its own political ends and nothing more.

George, just what are you trying to say?

And by the way, have you ever written to the Miami Herald? The editors love letters like that!

Alright, enough with our friend George, let's see what the resplendently robed ones have uttered, what the coffee-swilling wise ones have graced upon us as we peek inside the heavily fortified concrete bunker that is our lovable 3d DCA:

Marbella Park v. My Lawn Service:

Judge Gersten to Judge Trawick -- did you know that in a contract for services the measure of damages is lost profits? And that means you can't just add up the gross amount due over the life of the contract, you have to deduct expenses too?

Now let's try that again.

Andries v. Royal Caribbean:

Oh no -- the Frye test!! I think the last judge to really understand how to apply this opinion was the guy who wrote it back in 1923.

But we are fortunate to have Judge Salter on the bench, who actually takes us through its application in his usual intelligent, clear, and careful manner.

Harris Specialty v. Punto Azul:

Oy, the offer of judgment statute. Here is another area of the law that is needlessly confusing and contradictory.

Do you think this clears it up for the trial judges and practitioners:

A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. See Fla. R. Civ. P. 1.442(c)(3); see also § 768.79, Fla. Stat. (2007). The rule does not require that a settlement proposal cover all claims between all parties involved, or that it settle all claims between the parties to the proposal. Jacksonville Golfair, Inc. v. Grover, 988 So. 2d 1225, 1227 (Fla. 1st DCA 2008). The rule merely requires that a settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008). Further, courts are urged to “use reason and common sense and interpret the offer as a whole to avoid unreasonable results.” Jacksonville Golfair, 988 So. 2d at 1227.

So this should be the last appeal on this rule?

Finally, and this is out of my skill set, but I see the 3d ruled on the public defender third-degree felony controversy:

We understand the difficulties faced by PD11. With an ever-increasing quantity of cases and a tight budget, their important task is certainly made more difficult. The office-wide solution to the problem, however, lies with the legislature or the internal administration of PD11, not with the courts.

Hmm, I know that attitude.

It's an unsigned per curiam opinion by Judges Shepherd, Cortinas, and Salter, but at the end of the opinion Judges Cortinas and Salter simply concur, with a written "special concurrence" by Judge Shepherd.

BTW, this is what Judge Shepherd thinks:

[T]his action is nothing more than a political question masquerading as a lawsuit, and should be dispatched on that basis.

I also love how Judge Shepherd points out that not a single client of Carlos' office has raised any objection to the representation! I guess there's not really a problem, then.

And pstt, don't tell Obama, but Judge Shepherd has empathy with a capital E:

I empathize with PD-11’s argument that its attorneys are overworked and under-resourced. Such appears to be the natural condition of the public servants who serve clients before the judicial branch of this state. Absent individual proof of constitutional injury to those clients, however, empathy or lack thereof is for the legislature.

So, I wonder who really wrote the per curium opinion?

I always knew Burt Young was a mensch.

But he brought a tear to even these jaded eyes with his most recent letter to the Florida Bar News (his earlier one is here), in what has become a continuing George L. Metcalfe soapbox/soap opera played out in the letters page of what used to be a normal Bar publication:

Is not it Biblically accepted that (wo)man was created in the image of G-d? If G-d created His people with different sexual orientations, then who is Mr. Metcalfe and his ilk to question G-d’s wisdom? If his answer is that the literal translation of the Bible says it’s so, then how are all of the bizarre and inhumane contradictions of the Bible explained? They cannot.

Who in their right minds would accept and be bound as part of the civil law the literal Biblical interpretations? (I do not consider members of the Taliban as being in their right minds!)

In sum and in every respect, David has made both his late mom and me very proud parents.

And, I repeat, any law that would prohibit the likes of my son from adopting a child is an “ass.”

And not just the law either.

You know, I think Burt is channeling either Shakespeare or Mel Brooks above.

Let's go with Brooks and the Nazis, they're funnier -- scroll through to about 4:55 in to see what I mean.

No, not in that way.

But your extraordinary certainty in the application of God's law to Florida gay adoption issues is either admirable or very scary:

Law which accurately contemplated this eventuality for the Jewish people (and the fact that slavery continues even today) is perfect God-given law. Time is no factor. God is unchanging and immutable, meaning He is absolute, unchallengeable, unassailable, indisputable, incontrovertible, and undeniable.

Exactly what law school did you learn this in?

You know, when I took the oath at the 3d DCA they must have left out that part.

According to George, God is like a slightly anal Dr. Weil, but without the fun psychotropics:

Coleman never understood that laws of Leviticus are health laws. Skin and blood infections abound when laws of adultery are broken (hence STDs and AIDS), and when garments of mixed animal materials are interwoven and worn in direct contact with human skin without sanitary lining. Harnessing horses and donkeys together results in uneven pulls on both animals, and greater injury risk to the farmer and his animals. Coleman should notice that serious health law violations which imperil people have greater legal remedies. Today’s research confirms great health benefits of those today who obey God’s law.

God’s laws condemning homosexual practices (Lev. 18:22) as an abomination remain consistent with all other health laws. As remedy for violating this law, God’s will separates those who defile themselves with homosexuality from the community (Lev. 18:29-30). Nowhere in 66 books of the Bible are children permitted to live with practicing homosexuals.

(I take it back -- maybe there were some psilocybin mushrooms somehow involved.)

But George makes a good point.

In fact, I insist that everyone in Florida live exactly according to George's conception of God's law.

Forget H1N1, George and I propose the Florida Legislature immediately pass a statute forbidding the sale of "garments of mixed animal materials interwoven and worn in direct contact with human skin without sanitary lining."

It's a health issue, people.

We also demand that horses and donkeys never be harnessed together (if you've seen Bachelor Party I think the reasons are obvious).

And don't get me started on sowing fields with mingled seeds.

Note to my friends at the Florida Bar News -- you've managed to turn your letters page into a "George L. Metcalfe" bot.

Each month letters are written and George responds, thus leading to more letters and responses in an infinite loop.

I guess George is right -- this endless letters debate is "unchanging and immutable" -- in other words, just like George.

I don't know about you, but I don't recall Charlie Crist or my rush hazing to be anything like this wholesome little frat at UF, which is the subject of this 11th Circuit opinion today written by Judge Tjoflat:

BYX is a national fraternity founded in 1985. It has twenty-two chapters in nine states. According to its constitution, it “exists for the purpose of establishing brotherhood and unity among college men based on the common bond of Jesus Christ.” BYX espouses a strict approach to the Christian faith, and membership in the fraternity is contingent upon what the fraternity deems “a credible profession of faith in Jesus Christ.” This requires agreement not only with the traditional core Christian beliefs and values contained in such ancient expressions as the Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal statement, BYX explains that members must “believe that the Bible is God’s written revelation to man, that it is inspired, authoritative, and without error in the original manuscripts.” Accordingly, BYX bars from membership non-Christians, Roman Catholics, and adherents to the traditional Christian orthodoxy taught by the mainline Protestant denominations.

BYX also demands moral and “sexual purity.” According to its code of conduct, BYX believes that “sex is a gift of God to be enjoyed inside the covenant of marriage between a man and a woman. Therefore, we will not condone such activity as homosexuality, fornication, or adultery.”

. . . .

After admission into the fraternity as a pledge, the applicant must complete the pledge process. The purpose of the pledge process is to examine the applicant’s understanding of salvation, his personal relationship with Jesus Christ, and his willingness to accept and promote BYX’s doctrine. As part of the process, the pledge must participate in BYX’s “Big/Little Brother Program” and is assigned to an active member of the fraternity who serves as the pledge’s “Big Brother.” The Big Brother is required to watch over the pledge and ensure that he is conducting himself in conformity with the fraternity’s code of conduct. Ideological, theological, and moral purity are central elements of BYX’s foundational purpose, and the “Big Brother” program is designed as a safeguard against the pledge going astray. As BYX’s constitution states,

BYX has fulfilled its purpose over the years, and Satan hates it. He wants to sift this group like wheat and is roaming on [ ] campus like a roaring lion waiting for the chance to destroy us. If the devil sifts our group, he will probably do it primarily through alcohol, but also through sexual impurity or lust, pride, laziness, and contention. So be on your guard.

The “Big Brother” is the first line of defense against such impurities and influences infiltrating the group.

. . . .

All BYX members and pledges participate in Cell Groups, which are weekly meetings where the members and pledges hold one another accountable to living consistently with BYX’s Christian beliefs and values. BYX also holds weekly meetings, which include prayer, worship, encouragement of specific members, a testimony or Bible message from a fraternity member, and announcements pertaining to fraternity business.

Ummm -- sounds like fun??

Forget Fast Times, Animal House, or even Revenge of the Nerds.

Haven't any of you guys seen PCU? Real Genius? Back to School?

Does any of this ring a bell at all?

Related -- do any of you know a lawyer in Leesburg?

Listen, I understand it's not a good thing to publish Social Security numbers or other personal information in public forums (hey, that's what Facebook is for!), so I get why CM/ECF has recently started to highlight that issue.

But every single time you log in? You mean we all will have to separately click that box for the rest of our legal career, every single time, every single day we try to access PACER -- perhaps thousands upon thousands of times?

I guess we really are that dumb.

Totally unrelated -- did you hear Sarah Palin is going to speak at a real college? It's something called College of the Ozarks and its nickname seriously is "Hard Work U."

According to the school's student handbook (portion highlighted above), this may be one of the few decadent, sicko liberal fornicatin' colleges that even George L. Metcalfe can get down with.

Since we're on the topic of God-given sexuality, does the public option turn you on? I was kinda lukewarm on it, but I suddenly have a strong interest in its passage now that it is literally personified by the lovely Heather Graham.

I hope everyone has had a chance to read the motion for rehearing en banc that was just filed regarding the recent ILSA opinion by the 11th Circuit. It minces no words, and argues flatly that the Panel decision "was the result of obvious bias."

Finally, speaking of alleged bias, this Orly Taitz is one hot crazy mama -- she has granted one of my many wishes and has appealed Judge Land's Rule 11 sanctions order to the 11th Circuit in an unusually detailed notice of appeal.

There are lots of highlights, but here's my favorite part:

Judge Land’s actions that amounted to misstating or misrepresenting ninety percent of what was presented in the pleadings and argument, completely ignoring ninety percent of the argument and facts, making extremely rude and demeaning remarks, showing bias; taken together, appear to be designed to silence her and, intimidate her and above all, punish her for what the Court perceived as political rather than “core” constitutional questions. It appears to be a thinly veiled threat to other attorneys not to pursue similar Constitutional issues, which will have a chilling effect on the ability of the public to use the Federal Court system to uphold their constitutional rights. Judge Land’s remarks amounted to nothing short of political lynching, which turned into feast and celebration by the media mob.

So I guess she's saying Judge Land got 10 percent of it right?

Maybe I'm jaded, but that's not too bad a percentage when you think about it.

Holy hail it feels like Friday.

Well kids, I'm heading out of here shortly and after a busy week a man's gotta windsurf where a man's gotta windsurf.

And, according to George L. Metcalfe's most recent letter in the The Florida Bar News, men may never windsurf in the company of other men:

In creation and throughout at least a 5,000-year history, God has kept children and homosexual adults separated. The practice of homosexuality is a biblical “abomination,” as stated in Leviticus 18:22, where God is directly quoted in the Torah, which is also the Old Testament. Moreover, Leviticus 18 closes at verses 29 and 30 stating:

“For whoever shall do any of these abominations, the persons that do them shall be cut off from among their people. So keep my charge never to practice any of these abominable customs which were practiced before you, and never to defile yourselves by them: I am the Lord your God.”

Thus, it is clear that God, the giver of law, hates the practice of homosexuality and His law and His will are to keep children and those practicing homosexuality apart.

God was directly quoted?

That's annoying, because He almost always insist on going background whenever I try to get Him on record.

And hold on George, you mean Judge David Young is gay???

You learn something new every day I guess.

Well, as David points out, there's an FBA shindig at the Biltmore tonight, but the Lew Freeman thing has left me a little unsettled and I may blow it off and sit down with a good book, one or three Gibsons straight up, and bask in the warm glow of domestic bliss.

Besides, I'm gonna need to set aside some time this weekend, I finally found a McCain I like, and -- best of all -- I'm happy to report I have tracked down my future ex-girlfriend Tania deLuzuriaga, who has landed on her beautiful feet and is now a Senior Account Executive at Colette Phillips Communications.

We know Tania is good with texting so it's no surprise she has a highly entertaining Twitter page here.

Tania, I'd "follow" you anywhere.

Have a great weekend everybody!

I see that activist Orlando lawyer and Liberty Counsel chairman Mathew D. Staver has an exciting new prayer-in-action program:

Here's How it Works...

Pick one or more of the liberals from the list we have posted online at www.LC.org, or choose your own liberal(s) to adopt. If you are led to choose one or more of the liberals we have selected for consideration, please read their brief biographical statement, including the reasons they stand in need of prayer.

Pray earnestly and intensely for them! Pray that the Lord would move upon them and cause them to be the kind of leaders who will encourage others to lead "a quiet and peaceable life in all godliness and reverence." We encourage you to seek the Lord's guidance on how to pray for your liberal(s), always allowing Him to temper your prayer with His love and mercy.

Join Us as We Pray for God's Powerful
Intervention in Many Liberals' Lives

Please pray daily for the liberal(s) of your choice, so each can become a good influence on our Nation's culture. Prayer is powerful! It allows God to change the minds of those for whom we are praying. In fact, we fully expect that many of our adoptees will "graduate" from this prayer program with vivid testimonies of God having changed their lives and worldviews!

Among the usual targets (Olympia Snowe, Michael Bloomberg, Arnold?) there is this prayer for the "Unknown Liberal":

The "Unknown Liberal"

There will likely be additional liberals the Lord may bring to mind who desperately need your prayers. Feel free to select your own unique liberal and adopt them for prayer, perhaps even nominating one or more liberals for listing on our website by emailing us at liberty@LC.org.

Indeed.

Personally I am praying for some of my favorite judges, Glenn Garvin, and George L. Metcalfe, but not necessarily in that order.

Ok, I'm going to try hard this morning to provide nothing but real serious legal news, so everyone can bill 1.8 hours for reviewing this crap.

Let's start with Chinese Drywall.

Everyone knows it's no fun to sue Chinese defendants.

Still, I was a bit surprised to see plaintiffs' lawyers talking about seizing ships that transported the drywall:

Herman said plaintiffs' lawyers were up to the challenge. "I think we can bust the dam in this case," he said.

He said making that happen could involve attempts to obtain damage payments by seizing vessels that brought the drywall to the United States if they return to U.S. ports and even going after Wall Street investment banks with a share of ownership in the Chinese companies.

"We've got financial institutions in the United States that have substantial investments in these companies that caused these problems," Herman said. He couldn't say which U.S. financial institutions could be sued for damages.

Miller said lawyers are considering asking courts to seize vessels that delivered the drywall.

"It's an interesting concept and if it can work to get the attention of these other Chinese companies, that's what needs to be done," he said. "Getting the missing parties to the table" was paramount, he said.

But seizing vessels — known as an "in rem" action, which often involves filing a lien against a vessel — and going after shareholders would hardly be easy, said Mark Ross, a Lafayette, La., lawyer who specializes in maritime law and civil litigation.

"My gut reaction is that that could be a bit of a stretch. In rem could be seen as a severe action, seizing a vessel, tying it up for a day," Ross said.

"How do you go about identifying what vessels to seize?" Ross said. "How do you seize a vessel for merely transporting cargo, which they might have been required to take by law."

A ship owner could sue if the seizure were deemed too aggressive, Ross said.

As for going after investors, Ross said that too was far-fetched. "Smart money says that's not going to work. A shareholder? Probably not. I don't know if that exposes them to liability."

It'd be one thing if the ships were owned by one of the Chinese defendants.

But seizure because in the past a ship owned by another company transported bad drywall? That'd be like seizing a UPS truck because it once transported a defective product.

Moving on, did you know that the Supreme Court has severely cut back the number of cases it accepts?

As usual, the law clerks are to blame:

Another factor contributing to the shrinking docket may be the “cert. pool,” the arrangement in which many of the justices share their law clerks to assess the thousands of petitions from which the court culls the cases it will hear. A single clerk writes a “pool memo” evaluating the case, and the memo is distributed to the participating justices.

The number of justices in the pool grew to eight from six from 1989 to 1991, and that may have driven down the number of petitions granted, according to Kenneth W. Starr, a former appeals court judge, solicitor general and independent counsel in the Whitewater investigation. (Seven justices are in the pool now. The exceptions are Justices John Paul Stevens and Samuel A. Alito Jr.)

“The prevailing spirit among the 25-year-old legal savants, whose life experience is necessarily limited in scope, is to seek out and destroy undeserving petitions,” Mr. Starr wrote in The Minnesota Law Review in 2006.

I don't know, given some of the recent opinions, this might be a good thing.

In 11th Circuit news, Judge Middlebrooks gets reversed by the 11th because he dismissed a complaint by a plaintiff proceeding in forma pauperis after the US Marshall failed to timely serve the defendant:

We agree with the well-reasoned decisions of our sister circuits. Relying on Fowler, we hold that the failure of the United States Marshal to effectuate service on behalf of an in forma pauperis plaintiff through no fault of that plaintiff constitutes “good cause” for the plaintiff’s failure to effect timely service within the meaning of Rule 4(m). Here, the district court allowed Rance to proceed in forma pauperis and, in accordance with § 1915, it specifically instructed the United States Marshal to make service. Our precedent allowed Rance to rely on the Marshal to make service. See id. For reasons unknown to us, the United States Marshal did not do so. Nothing in the record indicates that Rance shares in the Marshal’s fault for failure to effectuate service.

Therefore, the district court abused its discretion by dismissing Rance’s complaint without prejudice under Federal Rule of Civil Procedure 4(m) because the district court had directed the United States Marshal to serve the complaint, and the United States Marshal failed to do so through no fault of Rance.

Finally, somebody show this to George L. Metcalfe:

Gay or straight, the sexual orientation of adoptive parents does not have an impact on the emotional development of their children, according to a new study.

But researchers said that if parents were satisfied with the adoption process, had a stable income and functioned well as a family the risk of emotional problems in children were reduced.

"We found that sexual orientation of the adoptive parents was not a significant predictor of emotional problems," Paige Averett, an assistant professor of social work at East Carolina University, said in a statement.

"We did find, however, that age and pre-adoptive sexual abuse were," she added.

Averett, Blace Nalavany, also of East Carolina University, and Scott Ryan, dean of the University of Texas School of Social Work, questioned nearly 1,400 couples in the United States, including 155 gay and lesbian parents.

They used information from Florida's public child welfare system and data from gay and lesbian couples throughout the U.S. for the study.

Good lord!

Empirical data and even worse -- science? According to possibly David Broder and definitely Kirk Cameron, wasn't science first invented by the Nazis?

Sigh.

As I've already explained, there are only two legitimate sources of authority -- my gut, and what God tells me.

(On occasion, like my friend George, I might consider a truly horrific anecdote as well.)

Forget Tom Scott, if I were Judge Gold I would appoint the intrepid Julie Kay to figure out what the hail is happening here:

“I don’t know why it has risen to this level,” said Concepcion, lead counsel for the Elliotts. “This is one of those unfortunate cases where the animosity has spilled over to the attorneys.”

He tried to withdraw as counsel for lack of payment, but Gold refused to let him drop out.

Concepcion, who is facing a contempt hearing Sept. 18, is accused of lying to Gold by saying in open court that the Elliotts did not have any U.S. bank accounts. It later turned out they did and paid Concepcion from one.

In his declaration filed Wednesday opposing the plaintiffs’ motion for contempt and sanctions, Concepcion maintained he did not know his law firm received wire transfers from the Elliotts out of a Miami bank. Elliott testified that all his U.S. bank accounts had been closed.

“Neither I nor attorneys at CSM typically know the source of a wire transfer,” Concepcion said in an interview.

Concepcion’s co-counsel also filed declarations explaining why they should not be held in contempt or sanctioned.

Plaintiff attorneys in the case are also on the defensive. In documents filed last week, Concepcion asked for the disqualification of both Diaz and Piloto. He accuses Diaz of conspiring with Piloto, whom he terms Diaz’s girlfriend and the mother of his child, to file a separate lawsuit without disclosing their personal connection.

The purpose of a suit filed by a different attorney was to conceal the fact that Diaz was representing both sets of investors, according to the disqualification motion. Because one set of investors included EMI sales agents, Concepcion argues it was a conflict of interest for Diaz to represent both sets, which have been dubbed “the innocent investors” and the “impact investors,” who are sales agents including James Catledge.

“Diaz used Piloto as a front to avoid the appearance of impropriety arising from a conflict of interest between his then-clients, the innocent investors, and Catledge and his impact agent investors,” the motion states.

The agents have been sued separately throughout the country for participating in the alleged Ponzi scheme, according to the lawsuit. Concepcion’s motion claims Catledge conspired with Diaz to exploit a group of investors to take over their lawsuit, seize control of the Elliotts’ real estate and keep the agents from being lawsuit targets.

Concepcion argued that the two lawsuits mirror each other and clearly show the two firms are working hand in hand on the cases.

He also alleges attorneys for the investors took an expired asset-freeze order, issued by Gold, to the Turks and Caicos Islands and used it to obtain a temporary restraining order from the court there.

“After the Turks and Caicos court learned of the plaintiffs’ deceit, on April 9, 2009, the court discharged the TRO, stating, ‘This case causes me some disquiet,’ ” according to Concepcion’s motion.

The restraining orders froze the Elliotts’ assets and endangered the completion of renovations at a resort in the Dominican Republic, Concepcion stated. As a direct result, a bank is set to foreclose on several resorts owned by the Elliotts.

In a joint response to the disqualification motion, Diaz and Piloto called Concepcion’s allegations “gratuitious, speculative and completely devoid of merit.”

“Unable to defend their case on the merits, the Elliott defendants and their counsel continue to focus their energies on a litigation strategy directed at attacking the character and good name of plaintiff’s counsel,” their motion states.

A letter from Arthur Klein, general counsel for Arnstein & Lehr in Chicago, accompanied the motion. Addressing the issue of Piloto and Diaz’s relationship, Klein states: “In our judgment, your letter is inappropriate and unprofessional. We do not believe it merits a substantive response.”

Responding to the claim that the investors are responsible for pushing resorts into foreclosure, the plaintiffs say Elliott conceded his companies missed payments months before judicial liens were imposed in the Dominican Republic.

“The spuriousness of the Elliott defendant’s allegations is further demonstrated by the fact that it had been plaintiffs who notified the court of the foreclosures, and plaintiff attorneys have moved heaven and earth to do whatever they could to prevent the foreclosures from occurring,” the plaintiff attorneys said in opposing their disqualification.

In an interview, Piloto, an Arnstein & Lehr partner, said she and Diaz are no longer involved in a relationship.

“We stand by our papers,” she said. “Judge Gold is not going to be happy. He sees this for what it is.”

Piloto said Burr is motivated by a personal vendetta against the Diaz Reus law firm, where he used to work. The Daily Business Review reported in May that Burr resigned from Diaz Reus in 2007 “under less than amicable circumstances.” He also is suing Miami-based Astigarraga Davis for allegedly firing him because he is gay. The law firm strongly denies that allegation.

(BTW, that's Hilda Piloto pictured above.)

Let's see -- sex, money, vendettas, lawsuits, children, wire transfers from unknown locations, Tom Scott somehow, and the DR.

Kids, don't tell our friend from Leesburg, but this is how we roll in Miami.