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April 29, 2005

New blogger on "Yiddish with Dick and Jane"

In a rare blog endorsement, Eugene Volokh recommends The Patry Copyright Blog by Bill Patry, "one of the leading copyright scholars in the nation." Volokh writes,

"The inaugural substantive post is particularly interesting -- it's about parody, copyright, the political valence of parodies, and "Yiddish with Dick and Jane" (which Bill didn't much care for). I don't think I entirely agree with Bill's analysis; in particular, I think the "compelled speech" argument for letting authors block copying is mistaken, for reasons I discussed at ..."

More here.

April 29, 2005 | Permalink | TrackBack

S-P-I-N: What's behind recent headlines about courts and the law

"Is it just me, or has the news relating to the courts and the legal system been a bit weird recently?" writes Orin Kerr of The Volokh Conspiracy. "The big stories in the past few weeks have been filibusters in the Senate, Justice Sunday, the alleged Constitution-in-Exile movement, and Tom DeLay's criticism of Justice Kennedy. All of these stories have something in common, I think. They are mostly proxies for the political struggle to confirm the Bush Administration's choice to replace the ailing Chief Justice Rehnquist ..."

Juan Non-Volokh bears witness in his post, "Wilentz plays with numbers."

What do you think? Kerr's open to comments.

April 29, 2005 | Permalink | TrackBack

Your firm: McMarketing vs. real biz dev

"It's pretty clear that law marketing has invaded large firm practice -- and guess what?  They're all doing the same thing," writes Carolyn Elefant. In her post, "McMarketing vs. The Real Deal," Elefant compares the approach of solo firms to BigLaw -- and comes out happy.  She writes,

"I know we all read so much about Rules of Marketing.  And it's true, we solos need to market and we need to be disciplined.  But structured BigLaw McMarketing isn't the solution, not just because of the presumably exorbitant cost (I've heard that marketing heads at large firms are paid as much as $250,0000) -- but also because it doesn't always work ..."

More here.

April 29, 2005 | Permalink | TrackBack

April 28, 2005

Pending: Federal crime to transport underage pregnant teen across state lines?

The Volokh Conspiracy's Orin Kerr wonders whether a bill the House of Representatives passed yesterday is constitutional. Noting that the bill would make it a federal crime for any adult to transport an under-age girl across state lines to have an abortion without the consent of her parents, Kerr writes:

"I haven't followed this bill and haven't read the Supreme Court's relevant cases in this area since law school, so I have a question for any VC readers who are experts in this area: Under existing Supreme Court precedent, is this bill constitutional?"

Of the 15 comments Kerr's recruited so far, the answers are mixed. Garrick Sevilla thinks it could stand the test, writing, "If this Act did not have a health exception, I think it would have failed the undue burden test since you could imagine a situation in which a minor was away from home and needed an abortion for health reasons. The health of the mother is the second of Roe's twin aims, and the rationale for why the partial birth abortion ban was struck down in Stenberg v. Carhart. Regardless, the drafters of the Act did their homework and included such an exception. I find it unlikely that a federal law that merely requires a minor to satisfy the requirements of her home state (which are constitutional) will cross Casey's undue burden threshold."

Greedy Clerk, however, disagrees: "Orin, I can say with 99% confidence that the judicial bypass provisions in this law would not come close to being constitutional, and the exceptions (or lack thereof) for health of the mother are not constitutional either. Narrower versions of the bill proposed by Dems were not brought to the floor, I believe. Thus, put aside the other concerns -- it doesn't get past first base. You would think that the Republicans are passing this law, knowing it will be struck down by the courts, so they will have a campaign issue this time next year (i.e., those damn activist librull judges) -- but we all know they would never do anything like that ..."

Kerr's open to comments here.

April 28, 2005 | Permalink | TrackBack

SB 357: Pending California law adds serial numbers to bullets

"All The Romance Is Gone From Duels," quips J. Craig Williams, in an examination of California's SB 357. He quickly turns serious, sizing up the law on left (California) and right (Florida) coasts from a gun owner's perspective. Williams writes,

"I have serial numbers on my stereo, cell phone, computer software, vehicles, heck, even my dollar bills (I checked the ones in my wallet. All but one had a serial number on it.) Like my blog posts, my Walther PPK has a serial number on it. Should bullets be any different? The Gun Owners of California have put out an alert, claiming it will increase the cost of ammunition. On the other hand, what is the cost of crime?"

More here. (Don't miss the Quote of the Day)

April 28, 2005 | Permalink | TrackBack

So much for cloaking: Hoosier Daddy blog

Monica Bay recommends a blog that makes me think cloaking may have jumped the shark, at least for private practitioners. She writes, "Stephen Terrell has followed up on this threat to launch the Hoosier Daddy blog (as  well as the more sedate Hoosier Lawyer blog). The former promises to pontificate on all things Indiana (although I don't yet see a tribute page or link to David Letterman)."

Wienermobile The Common Scold's got her editrix on and she's absolutely correct: Terrell can write. Take his tag line as proof: "why South Bend is north, North Vernon is south, and French Lick isn't what you think it is." Enjoy.

Update 4.29.05 - I see that Bob Ambrogi also recommends this blog.

April 28, 2005 | Permalink | TrackBack

Mass. Bar Association: Selfish or service?

Just in time for Law Day, blogger Bob Ambrogi and occasional Crime & Federalism guest-blogger David Giacalone are in fundamental disagreement about the values embraced by the Massachusetts Bar Association. Here are two brief excerpts of the extensive opinions offered by each attorney. I recommend you read them yourself:

Ambrogi: "I rarely use this blog as a soapbox, but, as a long-time member of the Massachusetts Bar Association, I cannot let David Giacalone's post about it (bar & guild) go unanswered ... I often agree with David and, when I don't, I nonetheless respect his opinion. But his portrayal of the MBA as a self-serving "guild" with little concern for the interests of clients and the public is just wrong ..."

Giacalone: I've come to the conclusion that members of the Massachusetts Bar, when acting in groups and given the opportunity, far too often put the interests of lawyers above those of clients and the public. And, they do it with arguments so petulant or specious that even their legitimate concerns seem suspect. [If I had to name the archetypal Bay State law firm, it would be "Wein, Karp & Mone, Unlimited".] ...

April 28, 2005 | Permalink | TrackBack

Your blawg: Next best thing to a Supreme Court appointment for lawyers?

In "Blogging Your Way to the Top," Bob Ambrogi says the list of legal minds who made Legal Affairs' Top 20 Legal Thinkers  is "further proof in the growing body of evidence that blogging is an important and influential publishing medium." Ambrogi writes,

"[B]rilliant though he may be, would Glenn Reynolds have made the list were he not also the Instapundit? And Legal Affairs itself suggests that, for all his accomplishments, Eugene Volokh may have been nudged onto the list thanks to his blog, The Volokh Conspiracy. Undoubtedly, Richard Posner would have made the list even without his blog, but just as undoubtedly, blogging has contributed to the high profile of Lawrence Lessig. "

More here.

April 28, 2005 | Permalink | TrackBack

Better than hearing a BlackBerry crunch under my boot heel

Rees Morrison recommends a simple solution that requires self-discipline, rather than raging against the machine. Off to change my voice mail message to sound like his ...

Related story: Tyranny of the BlackBerry: Lawyers discuss a sanity check

April 28, 2005 | Permalink | TrackBack

April 27, 2005

Tyranny of the BlackBerry: Lawyers discuss a sanity check

Bruce MacEwen just made my day -- and perhaps yours too -- by sharing a recent dialogue he had about the tyranny of the BlackBerry. I'm embracing his post as proof postive that I'm not the only one who feels her life is now ruled by technology. MacEwen writes,

"At the Fordham Law School conference where I spoke 10 days ago (on challenges to "professionalism" posed by large firm practice), an off-agenda, spontaneous and heartfelt dialogue broke out about the nefarious impact of BlackBerrys -- albeit on the premise that there's no going back.  A Cravath partner said rather wistfully that when he began practicing and a client posed a question, "one had time to reflect, to turn it over and around in one's mind, to probe it."  Can you say, "that's so yesterday!"?

"This saddens me.  And maybe it doesn't have to be this way.  We are, after all, collaborators in submitting to the tyranny of the clock.  Although it's too soon to know for sure, initial reports are that the train derailment in Japan that killed over 90 people yesterday was caused by the motorman speeding because he was 90 seconds behind schedule.  An extreme case of "clock tyranny," to be sure, but isn't our reaction to that story to hold the simultaneous and incompatible views both that the motorman was crazily irresponsible, and that we can understand his wanting to be on schedule?

"There's no simple solution to this, of course, but we can begin, as did Business Week, by pointing out how irrational it all is ..."

More here.

April 27, 2005 | Permalink | TrackBack

IP in Europe: KPMG says victim of "careless guardianship"

Bill Heinze links to a dire KPMG survey of intellectual property practices at 300 leading European companies in his post, "Investor Expectations go Unmet by I/P Managers."

Heinze quotes KPMG as reporting that "there is a dangerous separation between ostensible management authority and financial accountability for intellectual property assets. It is difficult to think of another class of corporate asset which is so highly regarded as a source of value, but which is the victim of such careless guardianship. ... There is clearly something of an expectation gap between what investors are looking for and what companies are doing."

How bad is it? Heinze pulls this statistic: "71 percent of all respondents have no performance indicators for IP." Does anyone know of any such survey of oh, say, Silicon Valley companies or attorneys thereof?

Related posts:

April 27, 2005 | Permalink | TrackBack

Ruffled over Riffles

Frito-Lay, a division of Pepsico, has lost a trademark battle in the European Union, reports J. Craig Williams.

April 27, 2005 | Permalink | TrackBack

Part two: How to tame the blogging buzz

Some bloggers are reacting to the latest news coverage of blogging (BusinessWeek's story and a New York Times report on a celebrity blogging site) like locals who are worried their favorite watering hole is going to be invaded by the bridge-and-tunnel crowd.

I've been trying to understand the concerns and fortunately Carolyn Elefant has come to the rescue. Read her post, "Go Ask A Blogger -- It Works!" in which Elefant gets to the real value of blogging with a community of other intellectual professionals, and offers up a hope that the medium is preserved despite exponential growth:

"I really hope that the free discussion of information continues in the blog world.  And I hope that years from now, we don't look back at the nascent days of blogging and reminisce about how so many law bloggers used to answer questions, willingly and freely and wonder why they don't do it anymore."

Related post:  Read "How to tame the blogging buzz," my Monday post suggesting you read a few legal bloggers who can filter the media coverage for you.

April 27, 2005 | Permalink | TrackBack

FMLA: Not 75 miles as the crow flies

Under the Family and Medical Leave Act, employees are not eligible for FMLA leave if there are fewer than 50 employees within 75 miles of a work site -- even if employers meet all other conditions. The key question is how to measure that 75 miles: as the crow flies or over public roads. Mike Fox provides an update on the latest, via a 5th Circuit ruling in Bellum v. PCE Constructors, Inc.

April 27, 2005 | Permalink | TrackBack

How safe are your client records really?

Have you backed up, encrypted and stored your client records recently? A simple solution to sanity that is too often overlooked in knowledge management--your firm's or your own--is advice on how to prepare for the inevitable loss of data. Monica Bay recommends three worst-case scenarios (Bank of America, Iron Mountain and Ameritrade), and some sound advice.

April 27, 2005 | Permalink | TrackBack

April 26, 2005

Interactive Supreme Court docket

Introducing a public service from Michael Cernovich, who has created a clickable list of the remaining cases on the Supreme Court's docket, including respective briefs and slip opinions, and provides the oral argument date. Here's his recommendation on how to read it:

"In red font are those opinions which I think are likely to be handed down within the next couple of weeks.  For those cases, I summarized the legal issues.  Please note that the chart is neither perfect in form or substance; but it's better than nothing.  If you spot any errors or omissions, please leave a comment.  Better yet, download the file, improve it, and post it on your own blog.  Anyhow, click here to access the chart. It seems pretty likely that this week we will see Small v. United States; Pasquantino v. United States; and Wilkinson v. Austin."

Cernovich provides additional alternatives for catching up on the Court at the bottom of this post. You can also try:

April 26, 2005 | Permalink | TrackBack

Loneliness and isolation: Hazards of solo practice

Carolyn Elefant offers a sneak peek at the chapter she's contributing to an upcoming edition of the ABA's book, "Flying Solo." In "How Not to Be Lonely," Elefant writes,

"I have to admit that I'm a little bit of a recluse by nature -- you know, the kid on the playground reading a book in the corner instead of socializing, the person who likes seeing movies alone and can't stand attending the firm Christmas party.  But even I need interaction every once in a while ..."

More here.

April 26, 2005 | Permalink | TrackBack

How to build a BigLaw management team

Monica Bay recommends colleague Bruce MacEwen's piece on the inherent conflict between chief executives and chief information offers. MacEwen, in fact, has delivered a cheat-sheet on how to build out an entire c-level management team for firms in the past month. Here's how, courtesy of Adam Smith, Esq.

April 26, 2005 | Permalink | TrackBack

How to deal with difficult clients, or just look like one

Wonder how your firm can improve its client service record? Don't miss Carolyn Elefant's post on dealing with difficult clients, or, per Matt Homann's  strategy, just look like one.

April 26, 2005 | Permalink | TrackBack

Blawgger in da houz

Joy London is getting mucho props (from feedmelegal and Nancy Stinson, author of Stark Law Library blog and Kevin Heller, author of Tech Law Advisor) for her recent article "Blogger in the house: The rise of 'blawging' as a knowledge-sharing tool," published in Managing Partner magazine.

The anonymous blogger of feedmelegal particularly liked this segment by London:

"A well-designed blawg can serve as a critical document-management tool for organizing and archiving legal information. The very act of trading relevant links and useful ideas electronically, via blog posts and reader response, captures crucial matter-related content automatically, rendering it searchable and browsable ... the firm acquires a valuable, annotated repository, user-friendly and equally accessible to individual lawyers, internal practice groups ... and organizational departments. ... Not incidentally, both productivity and information exchange increase through better time management and resource allocation."

More here.

April 26, 2005 | Permalink | TrackBack

April 25, 2005

What's holding up Docket No. 03-1454, Gonzales v. Raich et al?

Randy Barnett, who argued before the Supreme Court for Raich, links to a UPI write-up that "One thing they certainly will not do is rule against the government . . ." Mike Cernovich notes that "The government has petitioned for cert. in three recent cases, but has also asked that the Court hold the cert. petitions pending the outcome of Raich. ... If the Court sides against Raich, it's unlikely that Maxwell, Smith, or Stewart will stand.  All three cases, like Raich, involve the intrastate production or possession of materials for which there is a national market (machine guns and child pornography).  But it's worth keeping an eye on them." Read more from Cernovich in "Raich, Child P*rn, and Machine Guns."

April 25, 2005 | Permalink | TrackBack

A small world after all?

With a nod toward recent Supreme Court dustups over allusions to international law, J. Craig Williams says he's willing to take on peer review of his practitioner's perspective:

"It's called context. Would it be unreasonable to turn to English law for assistance in interpreting our laws? I think not. There's not a lawyer who graduated from law school that doesn't know about Blackacre and Justice Blackstone (see section 77, et seq.).

"But if we recognize that many of our laws were derived from England (and, consequently, Roman and Greek law, arguably all the way back to the Code of Hammurabi) where do we stop? Is South Africa just one of the branches that we need to look at in order to understand our own laws?

"Depends on whether we continue our history of isolationism. Will the world get any smaller?"

April 25, 2005 | Permalink | TrackBack

Whereby everyone who ever thought of being an inventor or just acting like one kicks themselves

Independent inventor gets $1.35 billion, courtesy of Bill Heinze.

April 25, 2005 | Permalink | TrackBack

Whereby an inventor kicks himself

In "Whereby Clause Limits Method Claim," Bill Heinze describes how the patent owner in Hoffer v. Microsoft (Fed. Cir. April 22, 2005): "argued that the 'whereby' clause in a method claim for the interactive trade network exemplified above should not limit the claim, pointing out that the Federal Circuit has held that a whereby clause in a method claim is not given weight when it simply expresses the intended result of a process step positively recited. Minton v. Nat'l Ass'n of Securities Dealers, Inc., 336 F.3d 1373, 1381 (Fed. Cir. 2003)."

Here's how the Federal Circuit disagreed under the facts of this case.

April 25, 2005 | Permalink | TrackBack

The final bill on bankruptcy

Volokh Conspirator Todd Zywicki writes that he was the only law prof present last week when George W. Bush signed the bankruptcy bill that Zywicki's been testifying and writing and chewing over for years: "After eight years of seeing defeat clutched from the jaws of victory, I half expected that the President would get lost on the way over or that the pen would run out [of] ink while he was signing it. But everything went off without a hitch ..."

Don't miss the last few chapters on our new national policy -- or Zywicki's description of what sounds like a great Ph.D. dissertation for some enterprising attorney or economist: tax problems as a primary cause of consumer bankruptcy.

April 25, 2005 | Permalink | TrackBack

How to tame the blogging buzz

I have a recommendation: Don't just read what mainstream business media like BusinessWeek et al. have to say about the value of blogging. Get some perspective:  Read what business bloggers have to say about BusinessWeek's coverage.  Here's a reading list for your reading list:

April 25, 2005 | Permalink | TrackBack

April 22, 2005

Lawyers sound off on "The CSI Effect"

How does TV effect criminal trial practice? Orin Kerr points to a U.S. News & World Report story that's making the rounds of the blawgosphere. Norm Pattis, who knows a little something about criminal defense, writes,

"The CSI Effect? I call it the prosecution's new best friend," he concludes after writing earlier, "Why not a new crime show? One oriented to the defense? Follow the same formula as the old ones. Begin with a horrific scene: a man sits on death row awaiting a needle to the vein. Enter the hero, his lawyer, who, armed with an expert, uses scientific evidence to prove the man's innocence. It doesn't resonate quite the same way, does it? We love victims in this the land of a Oprah and Company. But not victims of miscarriages of justice."

More here.

April 22, 2005 | Permalink | TrackBack

Gee, should I check BigLaw's quota box or hang out my own shingle? Hmm...

Carolyn Elefant, noting that five young African American attorneys have formed their own firm to serve Fortune 500s and black-owned businesses in Atlanta, adds her 2 cents to their decision:

"Almost a year ago, this article Courting Shell (American Lawyer/ 6/24/04) reported on how large corporations are now demanding more diversity of the lawyers who serve them.  Thus, corporations are turning to firms with female and minority attorneys -- and firms are scrambling to respond by increasing diversity in the ranks.  But isn't this just a little too late?  After all, there have always been talented female and minority attorneys -- but law firms never wanted them until their clients did.  And now that there's a demand for sophisticated female and minority attorneys, why should they go to large firms at all?" 

April 22, 2005 | Permalink | TrackBack

"E-mail After Death. What Are Your Plans?"

J. Craig Williams has a point:

"Where do your e-mails go? I'm not sure whether there's an e-mail heaven or an e-mail hell, but my tech department tells me plain and simple, 'They stay on the server' ..."

It's a question worth asking: What's your firm's policy for employees who are suddenly emeritus? What will you do with the inevitable personal e-mails that crop up? The, er, "out of the office" message takes some thinking ...

Great. Guilt over unanswered e-mails and appropriate netiquette extends even beyond the grave ...

April 22, 2005 | Permalink | TrackBack

D.C. statehood: Fair to be on par with California?

Blogfather Eugene Volokh thinks not and says so, via two opinions that are generating some interesting posts (see "trackbacks", links from other bloggers who are writing about the issue). Volokh writes,

"People periodically complain -- with some justification, I think -- that it's unfair that D.C. isn't represented in Congress. Its residents deserve representation, so D.C. should become a state. But as a California resident, I'm struck by the unfairness of the remedy the pro-statehood forces propose. D.C. has about 1/60 the population of California -- and about 1/10 the population of the average state -- but statehood proponents want it to have the same number of Senators as we Californians do ...

"... the fairest remedy, I argue, is not to give D.C. residents two Senators, but rather to give them a say in the election of a neighboring state's (e.g. Maryland's) two Senators."

April 22, 2005 | Permalink | TrackBack

"Solo stories from the front"

Carolyn Elefant recommends first-hand accounts by Russ Kraject and Jaime Levy Pessin.

April 22, 2005 | Permalink | TrackBack

Latest in-house counsel survey: The good and the bad

Ron Friedmann, reporting on Corporate Counsel's latest survey of in-house technology use, provides this summary:

The good news: Friedmann writes, "[I]n-house counsel are making better use of e-billing and matter management software to manage their outside counsel more effectively. Law departments are also using their market power to demand firms use technology, with 15 percent of respondents hiring a firm because of technology and 8 percent firing a firm because of lack thereof. Separately, 30 percent of law departments report having access to their outside counsel's knowledge base, up from 21 percent last year. "

The bad news: "Law department knowledge management, however, is still a challenge. Only one-third of respondents report having a KM system, the same percent as last year."

Related: Rees Morrison has a tip for in-house counsel who want to tackle law-firm billing. And if you have any doubts whether you should investigate the firms you use, don't miss Emma Schwartz's exclusive in the Legal Times. Reporting on a confidential Citigroup Private Bank study of firm finances obtained by Legal Times, Schwartz writes:

"The 2004 study gave firms high marks for improving overall profitability and holding the line on expenses. The challenge lies in how firms achieved revenue growth: hiking rates and squeezing additional billable hours out of their attorneys."

April 22, 2005 | Permalink | TrackBack

April 21, 2005

Law review changes: Real or imagined?

"Now that the spring law review season is winding down, I'm wondering if the new policies made any difference. Did authors submit shorter pieces?" asks The Volokh Conspiracy's Orin Kerr. "Did the editors actually prefer shorter pieces, or did the change in policy exist only on paper?"

Comment here. Here are related links for context:

  1. Will Blogs Kill the Law Review Case Comment?
  2. The Future of Legal Scholarship?
  3. New Harvard Law Review Policy on Article Length:
  4. Progress on the Length of Law Review Articles?

April 21, 2005 | Permalink | TrackBack

Look! Law firm takes advantage of 21st century biz methods ...

Bruce MacEwen, never one to shirk from his job of delivering tough-love about "managerial malpractice," reports some good news. Specifically, he writes, Reed Smith University is all it's cracked up to be:

"While signs of such a trend remain firmly invisible, I thought it timely to revisit RSU since it is such a shockingly obvious and powerful venture; that more firms are not emulating it is too dispiriting to discuss.

"First up is simply an updated and enhanced description of what RSU is all about, here.  Going behind the curtains a little further is Denise Howell, an esteemed member of the "Savvy Blawgers" panel here at Adam Smith, Esq., and perhaps not coincidentally herself counsel at Reed-Smith. ... Developments like this are inspiring enough to more than compensate for the litany of managerial malpractice that we occasionally delve into hereabouts.   Attention must be paid."

April 21, 2005 | Permalink | TrackBack

"Habemus Papam Squatteram"

Bill Heinze, who must be the funniest IP lawyer alive, has a new take on the new I-am-not-the-pope site launched by one of my personal pinups, Rogers Cadenhead. Heinze writes:

"This self-proclaimed 'understatedly handsome computer book author' who registered says that he just wanted to prevent a pornographer or online casino from getting it first. He has a few requests (not demands) before 'the future of this domain will be routed through his devout Catholic grandmother'..."

April 21, 2005 | Permalink | TrackBack

More Blackmun: Should an article stand on its own merits?

The latest installment in Jim Lindgren's and Orin Kerr's polite disagreement over David Garrow's Legal Affairs article on the late Supreme Court Justice Harry Blackmun underscores for me (a) why this merry band of conspirators appears to work so well together even when they disagree, and (b) why the article will always be questionable as a piece of analysis.

Here's the answer to (b), via Lindgren's response to Kerr:

"... But I agree with Kerr that the examples Garrow uses are by themselves unpersuasive. I have no reason to think that Garrow, a Pulitzer Prize-winning historian, is making unrepresentative selections. I do think that some of them nicely illustrate a larger problem -- that (in some terms of the Court or with some clerks) Blackmun was shockingly uninvolved with the basic task of writing opinions, serving more as a substantive cite-checker for his clerks' writing the opinions. Garrow's piece makes this point, and supports it with evidence that points in that direction. The picture that Garrow paints seems a fair one to me, given accounts from some other Supreme Court clerks." [Emphasis added.]

It's notable to me that in order to agree with Garrow and to support his agreement with Garrow, Lindgren conducted the very research Garrow eschewed -- e.g., provided third-party context via interviews with clerks of the Court who were present during Blackmun's tenure. Lindgren says he's talked with two, one before the piece was published and one after, and states that these interviews corroborate his discussions with court clerks in the 1970s.

For me, the exchange confirms that without this context or without a review of a majority of Blackmun's opinions, I can't accept Garrow's piece as a definitive report. Instead, I consider it opinion analysis. And  as an opinion analysis it must, no matter how well-written, be weighed in context with my own standards for context, standards for proof, interpretation of Garrow's biases and application of my own.

It's like any op-ed: If I agree with the writer's opinion, I am likely to be satisfied. If I don't, the writer's approach means I will never be convinced. And that's the risk Garrow took when he adopted this approach.  (Garrow's lucky to have Lindgren in his corner with this reader.)

Judge for yourself, courtesy of Lindgren and Kerr -- and I think the answer to (a) will be self-evident along the way: All related posts are on this page.

April 21, 2005 | Permalink | TrackBack

April 20, 2005

A Volokh dissenter: Look who else has a different take on Blackmun and his clerks

"I have to tentatively disagree with my co-blogger Jim Lindgren's characterization of Garrow's piece as "fair," writes Orin Kerr. "My initial reaction is that Garrow's piece seems rather unfair. The fault may lie in the length requirements of a magazine article; perhaps Garrow has a lot more evidence for his conclusions but couldn't pack it all in to such a short piece. But based on his Legal Affairs essay alone, I don't think Garrow has made his case ..."

Agreeing with Kerr: Mark Tushnet and Jack Balkin.

Yesterday on Legal Blog Watch: Arguing the legacy of Justice Blackmun

April 20, 2005 | Permalink | TrackBack

Yiddish "supplanting Latin as the spice in American legal argot"?

For all the criticism it has received, I can thank Legal Affairs' Top 20 Legal Thinkers in America award for teaching me yet another insight of blogfather Volokh's. Courtesy of the VC's Orin Kerr.

April 20, 2005 | Permalink | TrackBack

It is a wonderful life

Remember this holiday story about a South Harwich, Mass., mailman who wanted to be appointed postmaster?

This just in: J. Craig Williams reports that Paul Pimentel got the job.

April 20, 2005 | Permalink | TrackBack

BigLaw ostriches: Will you save your clients but refuse to take your own advice?

Would you "run a multi-hundred-million dollar a year enterprise without appointing a general counsel?" asks Bruce MacEwen. "Sounds like the kind of thing you'd advise your clients against in, say, a heartbeat?  Newsflash:  26 of the AmLaw 50 firms are doing just that ..."

April 20, 2005 | Permalink | TrackBack

Trademark dilution act passes House

Bill Heinze provides a lengthy summary of the Trademark Dilution Revision Act of 2005 (H.R. 683) that the U.S. House of Representatives passed yesterday, 411 - 8 Roll no. 109.

April 20, 2005 | Permalink | TrackBack

D.C. bar: Justice for all -- as long as you're not a solo

The D.C. bar has some explaining to do, given Carolyn Elefant's post, "Federal Judges Honor Pro Bono -- But Exclude Solos." Elefant, the blogger behind My Shingle, notes that a prestigious award for pro bono work specifically excludes solo attorneys. Not only does a firm have to have 25 or more attorneys to qualify to be honored by the chief justices of the D.C. Circuit, but dues-paying bar members have no access to the invitation-only event, which is a primo networking opportunity and a chance to meet those sitting the bench. Elefant writes,

"So, the bar wants everyone to play its part in realizing "justice for all" -- and yet it refuses to acknowledge the efforts of solo and small-firm attorneys who help bring about justice day by day, whether through performing pro bono outright or reducing rates to serve clients who could not otherwise afford legal services.  And in many instances, we provide that pro bono when our workloads are already full -- and without support staff to help out.

"To add final insult to injury, the tag line at the bottom of the press release says that the Judge's reception is a private event.  Meaning that no one from the bar or the public, outside of the press, can watch these large firms bask in glory or learn of their accomplishments, despite the fact that the judges hosting the reception are on the public payroll.  Why is that?  Are the achievements not worthy of public display?  Or is the reception not so much an award but rather a quid pro quo where big firms cash in on pro bono service by obtaining one-on-one access to the federal judges at an exclusive ceremony.  Sounds harsh, but let's face it -- that's how it looks from the outside peering in."

What do you think? Elefant's open to comments.

April 20, 2005 | Permalink | TrackBack

"Why Raich will lose"

Mike Cernovich, who feels so passionately for the defendant in Ashcroft v. Raich that he's devoted an entire blog to the case, spent yesterday trying to answer what he considers a very scary question. Why? Cernovich writes, "To dispel some anxiety, I am going to write why I think the government will win in Raich.  That way I won't have to awaken at (or, more likely, stay up until) 6 a.m. on the next decision day ..."

April 20, 2005 | Permalink | TrackBack

April 19, 2005

Arguing the legacy of Justice Blackmun

The legacy of late Supreme Court Justice Harry Blackmun is undergoing serious debate, in the wake of David Garrow's article in Legal Affairs magazine -- and the magazine chairman's note of rebuttal to its content.

Garrow's piece is "fair, insightful and scathing," in the opinion of Volokh Conspirator Jim Lindgren, who recently wrote an op-ed in The Wall Street Journal advocating term limits for Supreme Court Justices. "It appears that Blackmun lacked the talent to serve on the Court, deferring to clerks much brighter than he was to an extent that is unacceptable."

Garrow's biggest critic, however, appears to be Legal Affairs magazine's own chairman, Seth Waxman. The site has posted Waxman's open response to the editors, in which he calls the issue a "jarring anomaly" and says he is left "saddened, that this issue of Legal Affairs departs from its worthwhile mission." Why? Waxman writes,

"One would barely know from this one-sided treatment what a recently published excerpt from Linda Greenhouse's forthcoming study of the Blackmun papers, Becoming Justice Blackmun, reveals: that while Justice Blackmun (like others, one would hope) encouraged his law clerks to write freely and forcefully within the confines of his chambers, he often rejected their recommendations and indeed composed his own analytic memos for each of the several thousand cases in which he participated over a 24-year tenure."

Waxman's letter is followed on the same Web page by a rebuttal to Garrow's piece written by former Blackmun clerk William Alden McDaniel Jr., who lays out some numbers about Garrow's sample that are important if they are accurate. McDaniel writes,

"Justice Blackmun wrote 835 opinions while serving on the court: 313 majority opinions, 238 concurrences, and 284 dissents. Mr. Garrow examines barely 12 of those opinions, less than 1.5 percent. Based on this meager sample, Mr. Garrow uses his purblind analysis to trump up a charge that Justice Blackmun committed a "scandalous abdication of judicial responsibility."

Legal Times' Tony Mauro yesterday quoted Legal Affairs editor and president Lincoln Caplan as saying he was satisfied that the article was fair and accurate, that while "'it would have been acceptable and sensible to enhance the archival work' with views of the clerks, but not required."  Elsewhere in the article, Mauro quotes a number of Blackmun clerks who echo their colleague McDaniel's criticisms. Mauro writes:

"[Randall] Bezanson, like others interviewed, said Garrow's interpretation might have been different if he had sought the perspectives of the clerks whose memos he cited. Asked about that point, Garrow said his goal in the article was 'to put the documentary record out there without people doing a lot of backing and filling.'"

Volokh Conspirator David Bernstein pooh-poohs the value of interviewing clerks in "Obsequious Former Supreme Court Clerks: ... Have you ever seen a story about a Justice where the clerks are portrayed as anything but adoring? Blogfather Eugene Volokh, however, disagrees. Holding forth on the fundamental motivations of loyalty, professor V. writes, " such loyalty doesn't deserve the more or less unalloyed condemnation that the term "obsequiousness" suggests."

April 19, 2005 | Permalink | TrackBack

Barbie v. Bratz: Federal court prepares to doll up

"Unfair competition comes in all shapes and sizes," writes J. Craig Williams, who describes the latest flap between Bratz doll maker MGA Entertainment and Barbie manufacturer Mattel Inc.

April 19, 2005 | Permalink | TrackBack

Help save the endangered gizmos!

Gizmologo Bill Heinze writes, "Rather than sit back and watch as promising new technologies are picked off one-by-one, Electronic Frontier Foundation has created the extinct and Endangered Gizmos List to help you defend fair use and preserve the environment for innovation. "Don't let the dinosaurs kill off the competition," they say. Join the EFF campaign to help save endangered gizmos."

April 19, 2005 | Permalink | TrackBack

Will BigLaw start marketing fee flexibility?

With an eye on McGuire Woods' new advertising campaign, emphasizing its pricing flexibility and willingness to violate the (un)holy billable hour, Carolyn Elefant wonders whether BigLaw firms will follow.

"I'm curious to see whether this kind of strategy will reduce the cost of large firm services," she muses. Either way, Elefant doesn't think a trend would negatively affect her or other solos. Why? "[A]s a solo, I'm still not worried, because even with flexible pricing, big firms still carry way too much overhead to depress fees so that they can compete with me."

More here.

April 19, 2005 | Permalink | TrackBack

How one law firm blew a PR oppty to get buzz

Monica Bay offers an unfortunate postscript to her story yesterday on why law firms need an easy-to-use press room.  Today, it appears, she found a perfect example of what not to do -- and shares the entire, ugly story. Bay writes:

"See that post right below ... about why it's important to have a news media area of your Web site. Lemme give you a concrete example of how to frustrate a journalist. It just happened right now ... This site is very, very, very difficult to navigate. The most glaring errror: having a press room -- but with no contact information for reporters. That's just dumb. Reporters, on deadline, do not have time to figure out your site map ..."

More here.

April 19, 2005 | Permalink | TrackBack

Beyond the buzz: Knowledge Management

In the past quarter, has significantly fleshed out the number of knowledge management folk blogging with the network -- adding Bruce MacEwen, Joy London, Ron Friedmann and Rees Morrison to the area Monica Bay has long written about on her blog and in the magazines she edits.

Why do you care? Because the management of information quite likely costs your firm -- be it solo, vente or grande -- as much, if not more, than the bodies who manufacture and use it. And attorneys are not alone -- my world, the media world, has been in massive flux over the issue since Steve Jobs left his garage for an office space.

In case you're just dipping a toe into the KM water, I recommend you surf the following:

April 19, 2005 | Permalink | TrackBack

"No 'Constitution in exile'?" Pattis disagrees with Volokh Conspirators

"Are the guys over at the Volokh Conspiracy smoking something?" asks Norm Pattis, Crime & Federalism blogger, in response to the Volokh Conspirators' posts debunking Jeffrey Rosen's Sunday NYT article. (For a menu of VC writing on the subject, see my post Volokh Conspirators lambaste NYT piece on "Constitution in exile.")

Pattis writes, "Why deny the obvious? Cultural conservatives have a whole lot of court-packin' going on." Thus far, his readers seem to agree. More here.

April 19, 2005 | Permalink | TrackBack

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