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It is rare enough for a federal judge to write a riveting and funny, footnote-free book on how he handled a single case. Rarer still that the case led the judge to leave his courtroom and survey the area in dispute — a national forest temporarily populated by nude men, women, and children, as well as the occasional elephant. But what makes the book even more of a surprise is the name of its author: David Sentelle, a conservative, tough-on-lawyers judge on the U.S. Court of Appeals for the D.C. Circuit. In court, Sentelle sometimes glowers, but on paper he glows, writing with a droll, self-deprecating manner that manages to dispense a fair amount of wisdom about the business of judging. The book, titled Judge Dave and the Rainbow People, was published recently with zero fanfare by Green Bag Press, and is available in no bookstore (though it can be found on Amazon.com). The publisher is a new appendage of Green Bag, the law review that has a cultish following among lawyers, judges, and others who routinely say it is the only law review they read, and the only law review they look forward to receiving. It is also, Sentelle says unequivocally, the only outfit that would have published his manuscript, which had sat in a drawer for more than a decade. The law review published excerpts over several issues, to great acclaim, and then the editors decided to put it together, greatly expanded, in book form. “But for Green Bag, it would have been found among my relics after my death,” Sentelle says. The case Sentelle wrote the book about arose in 1987, while he was waiting for the Senate to confirm his nomination to succeed Antonin Scalia on the D.C. Circuit. The last thing he needed was controversy, but it came to him anyway in his capacity as a U.S. district judge in Asheville, N.C. The health director of North Carolina had gone to state court to prevent a mass gathering at the Nantahala National Forest of the Rainbow Family, an amorphous group of stuck-in-time hippies, nudists, and others who hold large reunions on national parkland every summer. One night, Sentelle learned in a phone call at home that the American Civil Liberties Union had removed the case to federal court. The call came from a journalist, a category of people that Sentelle describes in his book as “the most pesticide-resistant strain” among the “varmints” who pester people at home. The next day, both sides were before Sentelle, even as thousands of Rainbow People were converging on the forest in the western tip of North Carolina. It soon became clear that the only way to determine how much harm the Rainbow Family were capable of causing was to go there himself — the legal term for it is a “jury view,” except there was no jury. “If I had a world of time, I could have appointed a special master,” Sentelle says now. “But I didn’t. If I didn’t do it, nobody else could have.” So off he went, with law clerks and court officers in tow, but without warning to the Rainbow Family. He instructed all who knew him to address him as “Dave,” not as a judge, so he could be relatively unobtrusive. But he stuck out anyway because he, unlike most of the people he encountered, was wearing clothes above and below his waist. He inspected latrines and kitchens and visited “Hippie Hollow,” while avoiding, warily, an area on the group’s map called “Boogey Meadow.” Melanie James, one of his law clerks who figures prominently in the book, recalls that the spur-of-the-moment inspection was fun, “though not exactly what I expected to be doing as a clerk to a federal judge.” James, now a solo practitioner in Hertford, N.C., says she was “thrilled” to see Sentelle’s narrative published. “It’s him. He can be tough and stern when the circumstances demand it, but he is a very warm, friendly person.” [For an excerpt of Sentelle's book, see "What Do You Say to a Naked Hippie?" at right.] Sentelle’s inspection of the encampment was interrupted, he relates in the book, when a high-spirited elephant, followed by several Hare Krishna practitioners, charged across their path. Sentelle later told people that the elephant and its saffron-robed entourage was “the most incongruous sight I ever saw.” Another participant disagreed, telling Sentelle that the specter of a federal judge following mostly naked people toward a gypsy camp was the most incongruous sight the forest had ever seen. “It’s hard to disagree,” wrote Sentelle, “but since I saw the latter sight only as a participant, I’ll stick with the elephant.” Later, Sentelle passed by a fully clothed man playing bluegrass music on a five-string banjo, and he stopped to sing a few bars even though, Sentelle confessed, “I hit the right note only as a blind hog finds an acorn — that’s by chance and every now and then.” Interspersed in the narrative is a plain-language explanation of the legal issues Sentelle had to resolve. “The standing doctrine is a judicial way of saying, ‘Mind your own business,’ ” Sentelle writes at one point — as good an explanation as ever emanated from a judge or law professor. “Federal district judges do have a lot of power, but our power is not unlimited,” he also observes. “For example, I have never been able to get my kids to keep their bicycles out of the driveway.” Only infrequently did Sentelle’s pending nomination to the D.C. Circuit enter his mind, he writes. During one encounter with a particularly attractive naked woman, someone began videotaping, and Sentelle wondered what would happen if the tape fell into the hands of Democratic senators. Sentelle’s visit led him not to shut down the reunion. Instead, he got both sides to come to an agreement that allowed it to proceed in a way that met the state’s health and public safety concerns. When the settlement was announced, one member of a group of Rainbow People who crowded his courtroom jumped up and said, “Thank you, Judge Dave!” Sentelle returned to the site later, during the reunion and after it was over, and though there might have been some technical violations, it all worked out well. But Sentelle had misgivings. “It bothered me that the result of this litigation,” Sentelle wrote, “depended so near-totally on one man doing the right thing. . . . A principle danger of a result-oriented judiciary is that we then make the doing of justice depend not on laws but on persons. . . . I know Judge Dave, and he ain’t that perfect.” In a recent rare interview with a journalistic “varmint” in his chambers, Sentelle says he still is uncertain about his handling of the case. He could have easily bounced it back to the state court and washed his hands of the dispute, he acknowledges. “My jurisdiction was very questionable, and my job isn’t to go around problem-solving,” he says. “I guess you could call it an example of activist judging, and ever since, I have tried to avoid giving more evidence of it.” Nonetheless, Sentelle says, “I can’t say that I regret it.” Occasionally, especially as a district judge, Sentelle says, “You have to do things quickly. There are real people waiting.” Sentelle has done nothing to promote the book, and he will take no profits from it, donating them instead to the Oliver Wendell Holmes Devise Fund. “I’m not looking for any 15 minutes of fame,” he says. THE ‘GREEN BAG’ IS PUMPED UP Publishing its first book is one of several recent milestones for the irreverent and entertaining Green Bag law review. The review just reached its fifth anniversary, at least in its revived state. It was born in 1889, but stopped publishing in 1914, and took its name from the green satchels that lawyers from Daniel Webster on into the last century used to carry. It also was a pejorative name for lawyers, roughly equivalent to “ambulance chaser” today. In its first incarnation, it was called “Green Bag: A Useless and Entertaining Journal of Law,” but the modern version dropped the word “useless” to avoid the implication that other law reviews might actually be useful. The modern-day Green Bag also has a new home — George Mason University School of Law, where one of the founders, or revivers, is now teaching. Ross Davies, who discovered and dusted off the publication while a student at University of Chicago Law School, ran the publication for several years while working first at Gibson, Dunn & Crutcher and then at Shea & Gardner in the District. “I worked on Green Bag roughly between midnight and 6 a.m.,” he recalls. Last year, a teaching opportunity opened at the law school, and he took Green Bag with him. “It remains independent,” Dean Mark Grady said at a recent fifth birthday party. “We will support it.” Each issue is a mix of short items, doggerel, humorous pieces, and a few serious ones — University of Chicago law professor Richard Epstein wrote a piece on standing in the current issue which, unsurprisingly, is not as funny as Sentelle’s description of the doctrine. But even the serious articles are no longer than 5,000 words including footnotes, which are tolerated but discouraged. One article was actually on the subject of footnotes, and it was one word long. The title was “Are Footnotes in Opinions Given Full Precedential Effect?” The answer was “Indeed,” followed by a lengthy footnote. Green Bag has also been the home for a tongue-in-cheek annual review of the Supreme Court’s work by John Elwood, now an assistant to the solicitor general. When he stands before the justices, Elwood will have to hope that the justices have forgotten some of his zingers. Elwood once wrote that Justice David Souter “has the innate caution of a man who was never taken in by this fad they call ‘electricity.’” Of Bush v. Gore, Elwood wrote, “the justices were probably hoping they could bring to the presidential election the feeling of goodwill and national consensus that they had brought to the field of abortion.” Montgomery Kosma, another Green Bag founder and currently a senior associate in the D.C. office of Jones, Day, Reavis & Pogue, says, “I’ve always seen Green Bag as bathroom reading for lawyers.” It was Kosma who “discovered” the Sentelle manuscript while working as his law clerk. “He pulled it out of his drawer one day. It was actually written on a typewriter, and was an inch thick or so,” says Kosma. “I began reading it and couldn’t put it down. I fell in love with it.” It was a perfect fit for the then-new law review. The other top editor and founder is David Gossett, a D.C. associate at Mayer, Brown, Rowe & Maw. Gibson, Dunn & Crutcher has also been a supporter of the publication, especially partners William Kilberg and Eugene Scalia, now the Labor Department solicitor. MINORITY CLERKS: FOR THE RECORD When the dearth of minority law clerks first became a public issue in 1998, only one minority, a Hispanic woman, was a clerk that term. Now, four terms later, nine of the justices’ 35 clerks are minorities — one-fourth, and the highest number ever. An earlier count of seven minorities this term, first reported in “ Courtside,” Oct. 21, was adjusted upwards when further information revealed that two more clerks could be counted as minorities. The new high-water mark has been hailed by civil rights leaders who have monitored the issue over the years. “One-quarter, as opposed to nearly zero, is tremendous,” says former National Bar Association President Randy Jones, who in 1999 headed an inquiry into the low numbers of minority clerks nationally. The black lawyers’ group has launched an internship program that brings minority law students into contact with state and federal judges. “The message is getting through.” Carlos Ortiz, who chairs the Puerto Rican Legal Defense and Education Fund, says the record number is “a powerful symbol of inclusiveness for everyone in society.” Informally, “feeder” law professors and appeals court judges who recommend and help screen candidates for high court clerkships say some justices have made it clear that they want their list of qualified potential clerks to include more minorities. The fact that more clerks are coming from more varied backgrounds — including law firm and government experience before and after their appellate clerkships — has also helped broaden the pool of candidates. Jones calls on the Court to tally its clerks demographically and release the information to the public every year, so members of Congress and others who are interested in the issue can have accurate information. Currently the Court does not assist reporters who annually report on the backgrounds of the law clerks. Ortiz also says the Court should be “more forthcoming,” not only in releasing the numbers but also in talking with civil rights organizations about the issue, which it has never agreed to do. Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. “Courtside” appears every other week. Mauro can be reached at

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