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I do not subscribe to The Wall Street Journal. I make it a rule not to read much that doesn’t include pictures (today’s practice tip for appellate lawyers), and I don’t consider an occasional line drawing of Alan Greenspan to be a picture. Besides, The Journal generally discusses things I’m not much interested in. It has no sports page, no television listings and no comics. Reading it always makes me feel like I should put on Berlioz and some Earl Grey and find someone to discuss Proust with me. Since I don’t like Proust or Berlioz or Earl Grey, I have pretty much decided to forgo the extra half-dozen IQ points The Journal would doubtless provide me and just go straight to the hockey scores. So I am greatly beholden to Bob Mars (Dave Barry always refers to the nice people who send him material as “alert readers,” but I know Bob Mars and he doesn’t qualify for Barry’s sobriquet on either ground) for sending me this verbatim quote from The Wall Street Journal‘s April 25 edition: “The vast majority of seals killed in the annual hunt are young ones with penises too small to be worth much.” I was dumbstruck by this sentence. (This will surprise those of you who’ve read my appellate opinions and just assumed this had happened decades ago.) My instincts told me I was in complete agreement with it, but I had no idea how it could possibly have come up. It was like having someone approach you on the street and ask you to sign a petition to prohibit imprisonment of marmots and chipmunks for possession of less than a gram of marjoram: You’d agree in principle, but you’d be pretty nonplussed by the suggestion some sort of action was required. So I read The Wall Street Journal article to find out why the size of seal penises was a subject of concern to anyone but the seals. I did it at the library, so people would see me reading the paper and be reassured in the quality of their judiciary. I walked around while I read so as to get maximum exposure (probably the wrong word to use in a column about penises, but I have a day job; I can’t be spending a lot of time on rewrite), and I noticed a lot of people looking at me — some even pointing me out to others — and being reassured. I do feel a lot smarter now. The Journal‘s prose is impeccable, its headlines restrained and tasteful, its graphs mystifying but compelling. Just paging through looking for seal penis news made me feel a lot closer to George Will (which my wife considers reason enough not to subscribe). But I am less confident in my judicial abilities. The seal penis article turns out to be a terrific example of my own worst nightmare. No, not that nightmare. I haven’t had that one in months. The other one: The Doctrine of Unintended Consequences. The Doctrine of Unintended Consequences says that no matter what you do, no matter how you do it, no matter how thoroughly you analyze things, your actions will always have unintended consequences that outweigh their intended ones. This is every appellate justice’s nightmare. We all (some more than others) worry about writing a perfectly pedestrian, seemingly obvious opinion — resolving one single, seemingly straightforward issue — only to receive an agonized petition for rehearing and a dozen amicus briefs explaining that our opinion has wiped out an entire industry and will probably result in homelessness for thousands of families whose children will have to eat their pet bunnies to survive. That’s what’s happened in the seal penis industry (yes, it does. It says, “seal penis industry,” just as plain as day). According to The Journal, there is such an industry. According to them, every year all the poor fisherman in Newfoundland “head out into the icy Atlantic to hunt seals — a dangerous job the industry is trying to bring back from decline.” It’s hard to imagine that an industry that consists of poor, destitute fishermen going out into icy water to risk their lives clubbing seals to death has much room to “decline.” I would have a hard time deciding whether I’m more offended by the cruelty toward the seals or the cruelty toward the fishermen, but I have little trouble figuring out why this industry is in “decline.” Here is how The Wall Street Journal describes the daily routine in this line of work: “To reach their prey, the men jump out of their boats onto floating slabs of ice that can rise and fall 10 or 15 feet with the ocean swells. Leaping from slab to slab, they sometimes trek miles from their boats before clubbing or shooting a seal and dragging it back.” One fisherman described doing this last year from 4 a.m. until nightfall for a week, during which he made $320. As dismal as that sounds, failure is defined not as coming back empty-handed, but as falling into the water and dying of hypothermia — not a bad way to go, actually, but still less attractive than sitting around a warm fire and watching the Bruins play the Leafs. Apparently, fishing the North Atlantic, which just has to be one of the worst jobs on the planet even in the best of times, now leaves its practitioners so impecunious that they have to resort to seal bopping every spring. Think about that the next time you’re feeling sorry for yourself because some judge yelled at you. And what does all this have to do with the Doctrine of Unintended Consequences? Well, it turns out that the decline in the seal concussing business is based not just on the fact that seal pelts are now primarily in demand as Montgomery Street paintball targets, but also on the fact that the previously lucrative market for seal penises has … well … shriveled up: “Sales are ‘way down’ from a few years ago, ” says Sang-Jo Chung, who runs an herbal remedies shop in Toronto’s Korean district. Chung points to a leathery 10-inch seal penis on display in a glass case, which he says has been sitting unsold for more than four months.” Can you imagine? How can a 10-inch seal penis go unsold for four months? Well, according to Mr. Chung, it’s the Doctrine of Unintended Consequences. You see, seal penises are sold as an aphrodisiac. I find this hard to imagine. My experience has been that mere contemplation of a “leathery 10-inch seal penis” depresses ALL my appetites. I forget about food, drink, sex, sleep, chocolate — everything. All I want to do is get that picture out of my mind somehow. But I am apparently not typical (who knew?). It seems that seal penises were a very hot aphrodisiacal item in some Asian cultures (at $100 a pop) until Viagra came along. Money was being made hand over fist (I know this sounds like some kind of sleazy double entendre, but it’s really just another example of my lack of rewrite time. Don’t blame me, blame the Commission on Judicial Performance) in Toronto, Newfoundland and points east. But, in developing a drug to solve the dilemma of male erectile dysfunction (the dilemma being: Which is worse, a man without an erection or a man with one?), the pharmaceutical industry came up with an easier solution than pinniped genitalia. And in so doing, it unintentionally depressed its sister industry: the seasonal murder of Newfoundland seals and fishermen. The Journal expressed the problem succinctly but disturbingly. With Viagra on the market, “People can just see a doctor and pop a pill, whereas seal penises are often boiled, which can be smelly, and added to soup or wine.” Soup or wine? They’re adding “smelly” seal penises to soup or wine? Jeez, forget the seal clubbers, the industry that’s gonna be depressed by this story is Asian restaurants. They’re gonna have to post signs: “This establishment does not put seal penises in the soup.” Can you imagine spending a hundred bucks to have boiled seal penis tossed into your soup? In my whole life (which includes the years 1962-1968, when I thought of almost nothing but sex) I never wanted it bad enough to swallow seal penis soup. So I’m betting the folks at Pfizer pharmaceuticals had no idea when they tried to help out the 30 million men who have this problem (that’s Pfizer’s figure. I’ve never counted. And based on my conversations with other guys, I’ve never met one) that they would be putting a bunch of poor fishermen and Asian herbalists out of business. I’m pretty sure they had no intention of sticking poor Mr. Chung with a smelly, unmovable inventory. Nor did they desire to leave the Newfie fishermen without reason or recompense for all that uninsured ice-floe-cavorting. But the Doctrine of Unintended Consequences is implacable and unforgiving. I can already see the class actions on the horizon. Attractive plaintiffs (downtrodden workingmen and women, honest merchants), deep-pocketed defendants, sex (penises), violence (seals), drugs, race. … Heck, I’d try this one myself. I figure Pfizer stock is gonna go down faster than the Edmund Fitzgerald. And I am appropriately chastened. I figure if a lot of smart folks like the people at Pfizer can get waylaid trying to do good, I’m pretty vulnerable myself. I figure the Doctrine of Unintended Consequences can get you no matter how good your intentions. So don’t look for a lot of published opinions out of me for awhile. William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected]

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