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November 30, 2004


What's a fair rate for court-appointed counsel?

Probably not enough to hang your shingle on! That's Carolyn Elefant's advice to solo and small-firm attorneys who try to make a living exclusively on low-paying court-appointed work. Elefant does the math on your cost-o-shingle, from a two-week vacation to bar association fees and the caveat that you'd better be married to someone who can cover your health insurance, too. (Note: Worthy comments follow on

After Raich

Since United States v. Morrison, there have been many federalism defeats, and only four federalism victories.  If the Court chooses to reverse the 9th Circuit's decision in Raich, then McCoy (CA9), Stewart (CA9) and Maxwell (CA11) will certainly be reversed...

Read more of Michael Cernovich's view of a post-Raich world, with an emphasis on these cases. (In case you missed it, here's where Ashcroft v. Raich stood at the end of Day 1, according to bloggers.)

All wet

Once upon a time, Santa Barbara County rezoned some farmland as wetlands. Then, one day, a jury found the county's actions had violated the farmers' rights with "malice, oppression or fraud." How big was the county's biggest ever land-use judgment? Read the end of J. Craig Williams' story here (plus audio) on May It Please The Court.

Desperately seeking accuracy in media reports on the law

Volokh Conspiracy blogfather Eugene Volokh continues his quest for accuracy in media reports on the law. As you'll see, a recent Associated Press story on Americans' opinions about appointing Supreme Court justices who support Roe v. Wade fails his test -- as do the poll takers themselves. It's an excellent and important follow-up to his earlier comments on mangled media accounts of cases before the U.S. Supreme Court.

At the watercooler

I wonder what they sing to the tune of "Achy Breaky Heart"? David Kopel of The Volokh Conspiracy shows us what would happen if, as he puts it, The Weekly Standard were turned into country music songs.

Dean or deacon? Orin Kerr links an essay by a leading criminal law scholar on similarities between secular and spiritual thinkers.

November 30, 2004 | Permalink | TrackBack


Paying for your dreams

What if your law school debt payments were frozen at 10 percent of your income, regardless of how much you made? Would this approach free you up to pursue a lower-paying career in legal aid or solo practice? Or would it subsidize second-rate students who couldn't get jobs with big firms? Carolyn Elefant invites you to weigh in here. On

Ashcroft v. Raich, End of Day 1

By the end of Day 1, The Volokh Conspiracy's David Bernstein hoped NPR's Nina Totenberg (just this once) got her story wrong:

She ended her segment by suggesting that "by the end of the argument, it wasn't clear that Barnett had even one vote for his position," or words to that effect. Solum's transcript of the argument suggests otherwise, and I think that Randy did a great job.

Jim Lindgren excerpts proof that VC co-blogger Randy Barnett was indeed on his toes, as he argued for state rights to authorize the noncommercial use, growth and distribution of marijuana. Here's a teaser from his discussion with Justice Souter:

Barnett: The premise is that it is possible to differentiate economic activity from personal activity. Prostitution is economic activity, and there may be some cross-substitution effects between prostitution and sex within marriage, but that does not make sex within marriage economic activity. You look at the nature of the activity to determine whether or not it is economic.

As for Barnett, he weighed in at day's end with irrefutable proof that Totenberg wore red.

How to get sued

Play golf. From J. Craig Williams' new channel at May It Please The Court.

At the watercooler

Juan Non-Volokh has a basketbrawl update: Sounds like prosecutors will file criminal charges against a few Indiana Pacers and the fan who threw a chair as part of a Nov. 19 melee.

What's in a name? David Bernstein's latest last word on how he defines "Likudnik." Don't miss his links to The Volokh Conspiracy's ongoing discussion of the term.

November 30, 2004 | Permalink | TrackBack

November 29, 2004


UPDATE: Day 1, Ashcroft v. Raich

An update on medical marijuana's first day in the U.S. Supreme Court, where Volokh Conspiracy blogger Randy Barnett is arguing for state rights to control private possession and growth of marijuana, and acting Solicitor General Paul Clement is arguing for the feds:

•Eugene Volokh links to a detailed report on the oral argument.

•Eugene Volokh on his trouble with press accounts of Scotus arguments.

•Jim Lindgren links an early account of oral arguments. "It sounds tough."

•Eugene Volokh knows where Angel Raich can score

•Michael Cernovich says examining first principals shows "how wrong the government is in Raich."

Previously on Legal Blog Watch: Ashcroft v. Raich, Day 1, Medical Marijuana

How's my driving, boss? Call 1-800-I'M-ARMED

As of Nov. 1, Oklahoma gun laws that allow concealed weapons in locked vehicles are supposed to override employer rules against guns on the premises. The only obstacle is a recent federal restraining order, issued in response to a lawsuit by Whirlpool, Williams Co. and Phillips 66, among others, reports Mike Fox. Get the full update, as well as the Sooner state's definition of gun control and Fox's opinion as a Texan.

Insourcing from India

No, I don't mean outsourcing. Carolyn Elefant recommends taking a close look at India's Kharar Bar Association and its innovative approach to supporting solo practitioners, from libraries to loans. On

The sound of lawyerly wrists being slapped

Jottings by an Employer's Lawyer offers up two pieces of collegial advice based on recent cringeworthy comments from the 1st Circuit bench. From Mike Fox:

Rule 1: If you're a city solicitor, don't engage in post-settlement conduct for 15 years that the Court will call "both outrageous and reprehensible."

Rule 2: Don't write employment contracts the Court can excoriate, as in "this employment contract is a badly written agreement." (Bonus cringe: Don't miss the last paragraph.)

Calling child custody specialists

Eugene Volokh might want to interview you for an article he's writing. Here's what he's up to.

November 29, 2004 | Permalink | TrackBack


Ashcroft v. Raich, Day 1

"Good luck to Randy Barnett in fighting for drug rights. Our co-blogger Randy Barnett is arguing for the first time before the U.S. Supreme Court on Monday in the marijuana cases, taking the liberal, libertarian pro-drug rights position. We all wish him luck. Not only does Randy have an able and much more experienced adversary arguing the case for the government, but Randy's case will be a difficult case to win..."

Thus begins Jim Lindgren's post to fellow Volokh Conspiracy blogger Randy Barnett on his first day arguing before the United States Supreme Court. (As I noted last week, professor Barnett is arguing for California's right to decriminalize the growth and use of marijuana for medical purposes.)

Don't miss Lindgren's assessment of the government position in Ashcroft v. Raich, and the Court's conundrum. Meanwhile, on Crime & Federalism, Michael Cernovich prays the Court "does not pretend that Congress has the authority to regulate Raich's conduct," but still takes issue with The New York Times' pro-Raich editorial.

What does an attorney do the weekend before he argues his first case before the United States Supreme Court? Let him tell you: Catch professor Barnett's classy act here.

Three years of hell to become the devil

What five things would you change about legal education? That's the question Matt Homann asked five law students in the latest edition of his 5x5 series on the [non]billable hour. Read anonymous law student blogger Ambivalent Imbroglio's answers. Don't miss No. 4, my personal favorite, or the answers that follow from Matt's other interviews, including Anthony Rickey, author of <i>Three Years of Hell to Become the Devil</i>, Jeremy Blachman of Jeremy's Blog, and the unnamed bloggers behind Buffalo Wings and Vodka, and Sugar, Mr. Poon?

Wish list

What is the fatal attraction between cell phones and PDAs? No matter how big your purse or pocket, the two invariably crush into each other and dial somebody. On a new channel devoted to technology, J. Craig Williams says he has the perfect single solution. See May It Please The Court (audio available).

At the watercooler

Why nominate Condoleezza Rice for Sec'y of State when Madonna has so many opinions? J. Craig Williams wants to know, in "Perry Mason for AG and Madonna for Secretary of State" on May It Please The Court.

You can't imagine their picks for #1 song. Volokh Conspiracy blogger Jim Lindgren makes fun of James Lileks' making fun of Rolling Stone magazine's list of the 500 greatest hits. (To find this bit, surf past Jim's understandable lust for malted ice cream).

November 29, 2004 | Permalink | TrackBack

November 24, 2004


Holiday quid pro quo

"With the holidays approaching, we can expect an onslaught of marketing articles reminding us to send our clients and colleagues holiday cards and gifts to keep the flow of work coming," writes Carolyn Elefant on "But sometimes it's nice to say thank you not to get something in return but simply to express gratitude..."  Read more from Elefant on "Saying Thank You Because You Mean It."

Baptists and bootleggers circa 2004

Should you choose to toast this holiday, with clients or without, you may be interested to read what Volokh Conspiracy blogger Todd Zywicki can tell you about the wine in your glass. In the professor's latest installment on the 21st Amendment, he puts the "wine wars" into historic perspective as the Supreme Court prepares to mull the constitutionality of barriers to interstate direct shipments of wine.

Schooling high schools on the First Amendment

Is turning a student out after he won't reverse his gay pride T-shirts okay? Nope -- not based on the 4-1-1 about this Missouri high school's situation, says Eugene Volokh of The Volokh Conspiracy.

Is Word perfect?

Novell is about to say no, reports J. Craig Williams, and he agrees. On May It Please The Court.

Happy Thanksgiving

Legal Blog Watch updates again on Monday, Nov. 29.

November 24, 2004 | Permalink | TrackBack


Your hourly rate is X. Should it be 3X?

In an interesting follow-up to his post on "The Psychology of Pricing," Matt Homann extracts insight from a survey on book pricing. Here's a hint from The [non]billable hour: "lower prices (rates) don’t necessarily translate into more sales (clients)..."

Got a problem with me? Or just think you do?

Now-outed Federalist Michael Cernovich offers up his insider's description of the movement -- and some recommended reading. An excerpt from Crime & Federalism:

"[U]nlike the left, we Federalists are diverse. I think there are two main types of federalists: the Heritage-Federalists and the CATO-Federalists....Heritage-Federalist[s] are still down with the establishment, the only difference is they prefer smaller units of governments.  Powerful states are fine, a powerful federal government is less desirable.  CATO-Federalists are the anti-establishment wing.  We are as concerned with individual rights as the ACLU.  We differ with the ACLU on many issues, though, because unlike the left, we think that less government leads to greater individual liberty..."

Basketbrawl litigation

Juan Non-Volokh catches us up on the post-Pistons-Pacers legal circus thus far: who appealed, who sued and which famous activist-politician called who. His post, on The Volokh Conspiracy, reveals yet another crack in our civilization: The chair-thrower hasn't yet come forward, but look what's for sale on eBay.

At the watercooler

Logophile 9th Circuit Court Judge Ferdinand F. Fernandez (see here) apparently has some verbal competition on the First Circuit. J. Craig Williams reports on May It Please The Court.

Spin? Spun? Just plain dizzy? Eugene Volokh excerpts a recent CNN appearance by Congresswoman Loretta Sanchez (D-Calif.). On The Volokh Conspiracy.

November 24, 2004 | Permalink | TrackBack

November 23, 2004


Is keylogging an online computer a violation of the Wiretap Act?

Yup, says Orin Kerr of The Volokh Conspiracy. Essential to the professor's disagreement with a district court judge is the definition of "electronic communication." Don't miss his linked commentary:

"The government indicted Ropp for violating the wiretapping statute,
18 U.S.C. 2511, on the ground that he had intercepted Beck's
electronic communications.  Specifically, the e-mails and other
communications that Beck had sent had originated at her keyboard and
then travelled from her computer across the Net.  According to the
government's theory, these communications were the "electronic
communications" Ropp intercepted.

In a meandering opinion, Judge Feess rejected this approach and
granted a motion to dismiss the indictment.  The e-mails and other
communications were not "electronic communications," Judge Feess
held, and therefore the Wiretap Act had not been violated."

Perspectives on phoning it in

Speaking of professional communications, Matt Homann's question today is whether to work at home or not to work at home. He wonders about productivity. Discussing a new ABA Journal article, The [non]billable hour cites a different source that surveys where people who phone it in are phoning it in from -- and how happy most aren't about it. (New term of the day: "hotdesking it" or working anywhere you find space.)

Carolyn Elefant points to the same ABA piece as proof that "a professional home-based office is possible" under your own roof. "Many lawyers resist working from home, worrying primarily about image," Elefant writes in

Brief us: Do you work at home? Hate the very thought? Why? E-mail Legal Blog Watch.

SLAPPed by their own hand

The story of Northern California Carpenters v. Warmington, as Podcast by J. Craig Williams. Or read it yourself. Suggested music: here.

November 23, 2004 | Permalink | TrackBack


Scotus docket: A blogger argues the case for medical marijuana

On Nov. 29, Volokh Conspiracy blogger Randy Barnett will appear before the U.S. Supreme Court to argue it is unconstitutional for the federal government to prosecute patients who grow and use marijuana for medical purposes in California. (State law law permits the cultivation and use of cannabis with a physician’s consent.)

Fellow VC blogger Orin Kerr points to this excellent piece on Barnett's prep sessions at Boston University, which recaps the professor's road to defending a group of medical patients in the Bush administration's appeal Monday.

Law student Michael Cernovich says that the government is making professor Barnett's job easier. In a brief filed in Ashcroft v. Raich (Angel Raich, who suffers from a brain tumor, is the lead defendant), the United States has invoked the congressional power to regulate interstate commerce. In other words, Cernovich argues, the government is saying it's a bad thing that Raich et al can legally obtain medicinal marijuana because of the effect on the interstate illicit drug market. "Let's let doctors, not dope pushers, control the marijuana market," says Cernovich in Crime & Federalism.

Five-second therapy -- e-mail friendly!

What the "haruspex"? J. Craig Williams wonders whatever happened to plain English in his post about noted logophile and 9th Circuit Judge Ferdinand Francis Fernandez. May It Please The Court provides a dirty dozen of examples of how written arcana can convolute the legal process, as well as links to great definition sites. Williams hat-tips a recent article by Rob Crisell of California Lawyer.

And while you're thinking about your most recent brief, Matt Homann in The [non]billable hour wonders, "Do you treat new customers better than existing ones?"

At least those Webcasts are fair game...

Some industries might not like it, but members of the World Intellectual Property Organisation (WIPO) have sidelined a U.S. government proposal to extend broadcast copyright protection for Webcasts, reports Bill Heinze in I/P Updates.

At the watercooler

Basketball riot redux. In response to heated feedback, Juan Non-Volokh revisits yesterday's post, ponders and then issues his verdict: Yes, David Stern really is a coward. On The Volokh Conspiracy.

Legal lessons for the day: Don't play with your food. Or the informants.

November 23, 2004 | Permalink | TrackBack

November 22, 2004


IP reminder: Hey, geeks, save money here

Bill Heinze interrupts his vacation to note that higher U.S. Patent and Trademark Office fees will kick into place once President Bush returns from South America and signs the new congressional omnibus appropriations bill. Patent and trademark owners who file applications, pay maintenance fees and renew trademark registrations before then will pay current (read: lower) fees. Need the current and revised fee schedules and extensions? I/P Updates provides them here.

Bar-hopping: Can your state association save you time and money?

Just ask Carolyn Elefant, who today on unveils her "2004 Bar Review," a unique state-by-state survey of bar association resources edited to help the solo and small-firm surfer.

Here's how: Elefant eyeballs each bar's Web site so you don't have to, looking for and hot-linking specific research, law practice management and ethics tools that can save solos and small firms time and money. She rates each site, too. For example, the New York and Alabama bar sites are "excellent" because of their extensive tools, but she takes points off the ABA's score, "in light of its recent penny-pinching decision to cut the Solo and Small Firm Standing Committee within the ABA." Try the HTML page -- it puts you one click away from these carefully researched resources.

"Baseball's lessons for lawyers"

Meanwhile, the [non]billable hour is reaching outside of the law altogether for inspiration. After reading a write-up on the Minnesota Twins' new vouchers, where fans get a little ticket discount and lot of flexibility, Matt Homann writes about his new customer-friendly trial offer that just might become permanent:

"When I first read about the Twins’ plan, I started to think about how lawyers could use a similar voucher plan in their offices. We are talking to a few of our clients about offering estate-planning vouchers they can pass on as gifts to adult children, friends, parents, employees, etc. Each voucher is good for two wills, and powers of attorney for health care and property. We’ll offer the vouchers at a slightly lower cost than our normal flat rate for the services. In the event a person needs more significant estate planning, we’ll apply the value of the voucher towards our normal fee for that service. If this year’s trial run goes well, we will offer all of our clients the vouchers beginning next year."

(Eugene Volokh of The Volokh Conspiracy has a little something to say about baseball, too.)

Getting -- and giving -- the business

Once upon a time, there was a man named Lemoyne Dailey, according to a story I read today in May It Please The Court.

One day, Dailey attempted to put out a fire allegedly caused by sparks from a Union Pacific train. After incurring second- and third-degree burns over a substantial portion of his body and spending a number of months in the hospital, Dailey won a  $1.2 million settlement and $10,000 a month for a decade from the railroad.

Did Dailey live happily ever after? Or did his health insurer successfully sue him for $800,0000 in medical bills? Listen to J. Craig Williams' Podcast of the story or read it yourself here.

Discriminating opinions

On his way out of town for Thanksgiving break, Mike Fox draws attention to two cases in which the two circuit courts of appeals affirmed summary judgement on claims brought by former human resources employees, one involving racial discrimination allegations and hearsay. In Jottings by an Employer's Lawyer, he concludes:

"Although employers are often justifiably concerned when HR employees sue, perhaps attributable to the "they know where the bodies are buried" syndrome, as this week's result show, all is not always lost when they sue."

Meanwhile, Paula Brantner, blogging at Today's Workplace, reveals the plaintiff behind a recent "run-of-the-mill" story on a $2.5 million jury verdict as Republican state representative, Mario Goico of Kansas' District 100. Turns out that Rep. Goico is a pilot who successfully sued his employer, Boeing, for age discrimination. Noting that Goico's $2.5 million award includes $1.5 million in punitive damages against Wichita's largest employer, Brantner writes:

"This case shows that even a Republican legislator from a white legislative district can encounter discrimination (and not "reverse" discrimination either) that limits career advancement and job opportunities."

At the watercooler

Who's worse -- spoiled, overpaid NBA players or spoiled, abusive Detroit fans? After Friday's cup- and punch-throwing riot at an Indiana Pacers vs. Detroit Pistons game in De-twah, Juan Non-Volokh says the real coward is David Stern. But he thinks you can blame the fans, too. (Perhaps Stern should take Orin Kerr's advice and read fans the original Riot Act.) Both Kerr and Non-Volokh blog for The Volokh Conspiracy.

Speaking of complaints, Michael Cernovich says it's a shame no one is allowed to brandish a cup at Target. Apparently the department store's nonsolicitation policy has been extended to the Salvation Army for the 2004 holiday shopping season. Don't miss the comments -- one Crime & Federalism reader says Target's not alone.

November 22, 2004 | Permalink | TrackBack

November 19, 2004


Why is American Lawyer Media, given its proud tradition of legal journalism and extensive Web network, investing precious home page pixels in blogs? After all, these bloggers aren't even editors or employees. Didn't ALM get the memo? And why should you carve out precious billable minutes to read blogs?

The best short answer to these questions was written in March 2003 by Jim Calloway of the Oklahoma Bar Association. In an article for his fellow members, Calloway wrote:

"For many of you even reading this article is a leap of faith. Many, if not most, readers of this column may never have heard of blogs (or blawgs.) I would imagine the overwhelming majority of Oklahoma lawyers have never heard of them. Bear with me just a bit...

[T]here are some brilliant people writing blogs and law blogs. Lawyers who charge their clients hundreds of dollars an hour are freely dispensing their wisdom and analysis online for anyone to read. Law professors at some of our nation's top law school now regularly opine on court decisions released just a day (or a few hours) earlier. And if one of those decisions impacts a case you are handling, that analysis could be very useful to the practicing lawyer."

I can only hope that Mr. Calloway's prescience paid off for him, given the explosion of blogger influence within the legal community since he pleaded with his colleagues to hear him out. Today, attorneys write some of the Web's most popular and influential blogs. You likely already know how valuable blogs are to your daily professional life if you litigate, need the latest on Blakely, or you're involved with a firm's law library.

Mr. Calloway didn't dwell on the fact that attorneys also oversee the Internet's most notorious blog sideshows (the legal blogosphere even has its own version of Wonkette), and I won't either. Not today. Instead, I'll laud the expertise, insight and quality of commentary provided by's affiliate bloggers -- as well as much of the blawgosphere in which attorneys find themselves today (ever heard of him or them?) That's why, on Nov. 22, American Lawyer Media officially launches the Blog Network, a showcase for seven attorneys who blog:

- The Volokh Conspiracy by Eugene Volokh and 14 other co-authors

- May It Please The Court by J. Craig Williams

- I/P Updates by William Heinze

- by Carolyn Elefant

- The [non]billable hour by Matthew W. Homann

- Jottings by an Employer's Lawyer by Michael W. Fox

- Crime & Federalism by Michael Cernovich

We got your memo right here, pal

Now for the longer answer to my question: Why would ALM showcase writing by attorney bloggers? The answer is quality, agree's own affiliates. As The Volokh Conspiracy's Eugene Volokh wrote me in an e-mail last month:

"Law blogs provide analysis that's timelier, more legally sophisticated and more thorough than what we can get in the mainstream media, or even in the legal media. When you want to understand some computer crime law issue that's in the news, what better place to look for it than in posts by a law professor who specializes in computer crime? Few traditional publications will have writers with that kind of expertise. And blogs, of course, often link to key documents -- cases, statutes, complaints, pieces of evidence, and so on -- that the mainstream media often don't provide."

J. Craig Williams agrees -- but don't just read the "real skinny" on why he blogs and values blogs. Instead, click on the little gray icon at the bottom of his post and listen to him, too -- Craig's one of the few, if not the only, attorney I know who is Podcasting.

Quality -- of work and of life -- also is why these bloggers say they carve precious minutes out of their billable hours (or time in the lecture hall or time with their kids or time to sleep) to write and read blogs. Bill Heinze blogged the answer to my question, ("Why blog?") earlier this month, and I think he'd agree with Mike Fox, who e-mailed me this thought:

"My blog becomes my own personal tool to stay current, as well as serving as a private repository for my own research purposes. It is amazing the number of times I have been able to answer a question of a colleague by passing on a recent note and link. It certainly is also rewarding to hear from clients and other lawyers who have stumbled on it that they enjoy reading it ... And just like the lawyer chatting to the neighbors over a cup of coffee, if these folks come away with the conclusion that you just might know what you are talking about, that can't be a bad thing, for me or them."

The personal and interpersonal rewards of the job are two important goals for Blogger Matt Homann, whose very first post, I Hate Billing by the Hour, pretty much sums up his approach. "Blogging has given me a platform to share innovative ideas that I believe will positively impact my profession and improve my life," he wrote in an e-mail this week. With online colleagues like Mr. Homann and Carolyn Elefant, no solo has to feel like they're going it alone again.

Nor does any law student for that matter. In a nod to the recent graduates and young associates who visit, I'm happy to introduce Blogger Michael Cernovich.

The law at Legal Blog Watch

One of my roles, as the writer of this blog, is to provide you with daily upates on and links to the latest legal insight from's network of bloggers. Watch this space, as we'll regularly welcome other key contributors like this one. I welcome your suggestions for other sites and blogs here.

My second role is to shut up. I'd like to listen to your ideas and suggestions for the Blog Network. I wish I could make it easier for you by turning comments on in this blog, where you could post, but comment spam prevents me from doing so. Instead, for now, I invite you to e-mail me and tell me what you'd like to see happen here.

Please note: I treat all e-mails as public letters to the editor, so you may see your ideas here. I know I hope to.

November 19, 2004 | Permalink | TrackBack

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