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December 30, 2004


Monica Bay's done some lucrative surfing for free Wi-Fi, dictionaries for your Palm, and hotspots. So has Bill Heinze, who has a speedy cure for downloading "maddeningly slow patent images."

December 30, 2004 | Permalink | TrackBack


Great books

Just in time for a New Year's weekend off, the blogosphere's rife with opinion over new and not-so-new books and movies. Todd Zywicki fell so in love with Tom Wolfe's latest novel that he dang near missed the beauty of St. Lucia. And, as I mentioned yesterday, The Common Scold has a long list of favorites in her blog's right-hand margin.

Reel torture and salvation

Honeymooner David Bernstein was not so lucky, however: Trapped on multiple planes in a whirlwind tour of Hawaii, Guam, Australia and Tokyo, he suffered through some, er, reel torture. The worst of the worst, in his opinion? "Collateral." Which may be why Mike Geoghegan, May It Please The Court's guest-blogger, reached for the archives to review "It's A Wonderful Life."

Gasp! Actual work-related reading

Mike Fox has this story of a state worker who's suing because she's forced to read books all day long. Not really -- it's one detail of her allegation that she was relegated to the back office after complaining about having to attend a governor's prayer breakfast.

Bill Heinze recommends "Prisoners' Inventions," a fascinating read on IP and creativity behind bars.

Orin Kerr is enthusiastic about Larry Lessig's plans to use a wiki to update one of his books.

Meanwhile, blogfather Eugene Volokh is busy castigating his own writing. The only advice I can offer is the book I turn to in my own desperate writing times: here.

December 30, 2004 | Permalink | TrackBack

December 29, 2004


Once upon a time, Harrah's had a bartender who didn't wear lipstick.

Then one day, the chain's image got a corporate makeover. All of a sudden, cosmetics were required for women and banned for men.

Unfortunately, the bartender who didn't wear lipstick was a woman named Darlene Jespersen. When Jespersen refused to put on lipstick, or any other make-up for that matter, she was fired. So she filed a lawsuit claiming sexual discrimination.

That's legal, a majority of the 9th Circuit Court told her. Read on to find out why Mike Fox of Jottings by an Employer's Lawyer thinks this case is far from over.

December 29, 2004 | Permalink | TrackBack


Ever wonder how it is that attorneys are lumped in with car dealers and advertisers, as professionals most likely to be unethical and dishonest? (Here's such a survey, as recently discovered by Carolyn Elefant.)

Mulling this issue, I clicked over to The Common Scold and found my answer. Check out Monica Bay's latest posting on this new anti-faux pas training video for big firm lawyers. Suffice it to say that a BlackBerry -- and an arrogant young associate -- share starring, cringeworthy roles.

I haven't seen the video -- yet. Perhaps when I'm fully recovered from this little film on professional ethics and their effect on one's soul...

December 29, 2004 | Permalink | TrackBack


A $6 million punitive award in a contract lawsuit has raised both of J. Craig Williams' eyebrows.

After he weighs the merits of both majority and dissenting opinions in Robinson Helicopter Co. v. Dana Corp., Williams wonders what will become of California's legal tradition of preventing companies who sued for breach of contract from recovering punitive damages:

"That chasm provided predictability for businesses that damages would be limited solely to economic losses -- those losses that come from damages as a direct result of the contract breach (not punitive damages). The so-called economic loss rule, however, just got hammered by the Supreme Court. Flattened may be a better word. Like a steamroller."

December 29, 2004 | Permalink | TrackBack


Bill Heinze reports that new trademark filing fees start Jan. 31, 2005. He outlines the cost of initial applications versus amendments or responses.

And if I read the rest of I/P Updates right, the DOJ's War on Piracy is about to begin...

December 29, 2004 | Permalink | TrackBack


If you have any chance for a New Year's escape into a book and a glass of wine, The Common Scold has a delicious list for your perusal. Here's where to find it: Look in the right-hand margin under "Mon's Book List." It's followed by her wine picks.

Law student writing contest
Michael Cernovich knows you're tired and your brain is sore from exams. But he can't let you rest: Don't miss this opportunity, he urges.

December 29, 2004 | Permalink | TrackBack

December 28, 2004


The state of California has launched a new online database of registered sex offenders, reports The Volokh Conspiracy, and one group is explicitly forbidden to surf it: the offenders themselves.

If sex offenders "access" the site, it's a misdemeanor under Megan's Law. Is this the first time a law has made it a crime for certain people to access a public Web site? Nope, answers crim law professor Orin Kerr, who recently wrote a law review article on the topic.

Is this law blatantly unconstitutional? Michael Cernovich thinks so.

December 28, 2004 | Permalink | TrackBack


You won't believe the ultimate Catch-22 experienced by this Texas employee-to-be. Courtesy of Jottings by an Employer's Lawyer.

December 28, 2004 | Permalink | TrackBack


The world's fourth-largest drug market has taken bold new steps to amend patent law to cover pharmaceutical products, reports Bill Heinze on I/P Updates.

December 28, 2004 | Permalink | TrackBack


What happens to insurance coverage when one company buys the assets of another company -- especially if a company has been experiencing merger mania since the 1950s?

J. Craig Williams has the story here of a recent 8th Circuit Court ruling for Glidden paint, along with some interesting notes on how California and Ohio laws differ.

December 28, 2004 | Permalink | TrackBack


Drumroll: Dennis Kennedy has unveiled the 2004 Blawggies, his personal awards for excellence in legal blogging.

You can read Matt Homann's acceptance speech for Best New Legal Blogger here. Curious to know more about Anonymous Lawyer, the runner-up for Funniest Legal Blog? Carolyn Elefant has the 4-1-1 here.

Hat-tip: The Common Scold.

December 28, 2004 | Permalink | TrackBack


"Mommy, what's a Libertarian?" Ask professor Randy Barnett here, honey. He's been watching a new video comic written by Ken Schoolland...

Coincidence? Monica Bay blogs to differ, since 2004 brought both victory to the Red Sox and snow to Victoria, Texas.

Michael Cernovich recommends Blonde Justice. (Safe for work.)

December 28, 2004 | Permalink | TrackBack

December 27, 2004


As you know, I think Matt Homann's got some good advice in his Resolutions for Lawyers.

I'd like to add a resolution, based on an experience I had while dropping off my brother, sister-in-law and infant niece at San Francisco International Airport last week. I pulled up at curbside check-in with their 20 bags. As we began to unload the car, the following scene unfolded:

Guy #1 is a hipster in a Sherlock Holmes hat and sunglasses. He approaches Guy #2, a shorter, hatless fellow in a nice sweater with both arms through his backpack straps. They're both in their late 20s.

Guy #2 is returning his luggage cart to the Smart Cart kiosk, the kind where you have to pay $3 to extract a cart. It's a pretty busy morning, but it's the week before Christmas and some of the airline folks are wearing smiles and Santa hats. Pretty festive.

HIPSTER: Hi! Hey, man, mind if I grab your cart?

SWEATER: Silent. Freezes, hands on cart.

HIPSTER: Smiles, relaxed and friendly.

Suddenly, SWEATER narrows his eyes and darts two feet past HIPSTER to jam the rental cart back into the cart kiosk.

HIPSTER: Wha..? Hey, man, what're you doing, man!?

SWEATER: Makes a nasty face at Hipster, puts both hands on his backpack straps and tries to walk quickly away.

HIPSTER: Hey, F--- YOU, man! You MUTHAF---ER, WHAT AN A--HOLE, MAN! HEY!!!!!! Little f--ker...

SWEATER: Runs into building

At this point, my sister-in-law is staring open-mouthed at both these men, her hands clapped over her baby's ears. She's appalled. My brother, who was putting the baby seat into some crazy suitcase, is kneeling on the curbside, pounding the concrete as he howls with laughter. I am crying I'm laughing so hard.

LISA: Barely able to speak. Hey, Merry Christmas, man.

HIPSTER: Did you see that little f--ker?? Holy s--- man, what a @#$^!!!@$%!$!!! I'm going to get him.

LISA: Unable to talk, howling and wiping her eyes

LISA'S BROTHER: Still kneeling on ground, giggling. Listen, do you need $3 man? Seriously. No problem.

HIPSTER: looking brokenhearted. No, man, I have the money, it's just ... oh man. Walks away.

LISA AND BRO collapse again. Sister-in-law rolls eyes and stalks off.

LISA'S BROTHER: You know what's going to happen. That little s--- is going to be sitting next to him on the plane. Oh, man I hope it's our flight.

HIPSTER: Comes back to stuff money into cart kiosk.

LISA: Preparing to drive away. Hey, seriously, Merry Christmas, man. Geez...

HIPSTER: Smiling again, but still shaking his head. Yeah. It's cool. Merry Christmas.

I'm just glad my eight-year-old wasn't present for this particular display of holiday selfishness. My question for you is -- what shall I resolve, to give away carts or to demand at least some of my $3 from my fellow passengers? I'm leaning toward the gift -- $3 seems a small price to pay to help someone out, given everything else that's going wrong in the world.

How about your holiday travels -- what did you witness? E-mail me here. I'd love to blog your story this week.

December 27, 2004 | Permalink | TrackBack


What does the blog-ee, that elusive reader, really want? J. Craig Williams reaches beyond RSS feeds to study the voice and content that creates a blog worthy of reader return. Don't miss the Top 10 list he recommends.

Whether you're blogging or not yourself, Carolyn Elefant believes the secret to successful blogging can make a firm successful, too, and she has the links to prove it.

But if you're a law student, says soon-to-graduate 3L Michael Cernovich, you need to ask yourself: When is it appropriate to blog about what your professors say?

December 27, 2004 | Permalink | TrackBack


In the latest installment in predictions on who will replace ailing Chief Justice William Rehnquist, professor Randy Barnett reports on his Sunday afternoon talk-show viewing.

Meanwhile, President George W. Bush is reportedly renominating 20 attorneys to federal judgeships who couldn't achieve approval from Senate Democrats last time 'round. The 109th Congress reconvenes on Jan. 4.

December 27, 2004 | Permalink | TrackBack


Bill Heinze has a user guide to abandonment petitions on I/P Updates.

December 27, 2004 | Permalink | TrackBack


Before you shop 'till you drop in any post-Christmas sales, take a hint from The Volokh Conspiracy and check out Electronic Privacy Information Center's list of consumer privacy tips. This is one freebie no one can afford to miss.

December 27, 2004 | Permalink | TrackBack

December 23, 2004


...says Carolyn Elefant, who loves hanging out her own shingle and urges others to do the same.

Look who took her advice: In Carolyn's comments section, you'll find the story of one attorney's quest for professional independence and why he calls himself a non-solo...

"My family has decided to quit our cushy hourly law firm job in a very medium-sized town and strike out on our own. We have a $70k line of credit at the bank on our house. We have some credit cards with some hefty credit available on them. We are betting the farm, literally. With three kids ages 6, 4 and 2, we have decided it is more important to live life on our own terms, by our own sweat and principles rather than protect the roof over our head. Our small family is walking away from a $150k income [which is a lot where we live] for the feel of the breeze in my hair and a goal to change the way law is practiced..."   more

December 23, 2004 | Permalink | TrackBack


May It Please The Court introduces a father-son blawg dynasty.

December 23, 2004 | Permalink | TrackBack


Where's the outrage? wonders professor Orin Kerr, on The Volokh Conspiracy.

Wonder what he's on about? You may need more than one hot toddy to get through these headlines. And if those reports don't outrage you, at least one of these wildly diverse comments from VC readers might.

December 23, 2004 | Permalink | TrackBack


There's nothing like a little holiday hilarity to display the wry talents of our fave attorney bloggers. To wit:

The Common Scold: NASA's Sleigh Landing Facility

I/P Updates: U.S. Patent No. 5,379,202

Jottings by an Employer's Lawyer: If you're going to be a Grinch, do a good job of it

The Volokh Conspiracy: Speaking of Grinches...

The [non]billable hour: Matt Homann's trying to make sure Santa gets it right

Crime & Federalism: Michael Cernovich has his own list of cool stuff

May It Please The Court: Speaking of seasonal spirit...

December 23, 2004 | Permalink | TrackBack


Happy holidays everyone.

Legal Blog Watch updates again on Monday, Dec. 27.

December 23, 2004 | Permalink | TrackBack

December 22, 2004


"Looking out five to 10 years, what will the single most significant change be in terms of how sophisticated law firms (think AmLaw 200) are managed, on the 'business side'?"

That's the question blogger Bruce MacEwen asked a panel of savvy lawyers he put together. And savvy they all are, beginning with Monica Bay of The Common Scold, who writes:

"I think we are in the midst of a huge paradigm shift that is radically changing the entire legal industry. In a nutshell, the profession is changing from a private club to a corporate model, from "Eat What You Kill" to collaboration. It isn't happening overnight, but it is profound and I truly believe that any firm that doesn't pay attention will end up as roadkill..." more

Don't miss the other panelists, including Matt Homann, J. Craig Williams, Joy London, Tom Mighell, Stephen Bainbridge, Denise Howell, Dennis Kennedy, Ernie Svenson, Evan Schaeffer, Kevin O'Keefe and Ron Friedman.

December 22, 2004 | Permalink | TrackBack


Now that he's noted the dearth of presidential pardons for federal crimes issued by George W. Bush, professor Orin Kerr is getting an earful from Volokh Conspiracy readers. The good professor opened the discussion by writing,

"...[I]t's the president's job to do the right thing regardless of what the pollsters say. There are currently 150,000 people in federal prisons, with another 50,000 or so on probation. Could it be that none of them deserve presidential pardons?"

The response? Oh please -- from many quarters. Reader Greedy Clerk comments,

"That has to be a joke, right? This is from the president who has asserted that he has the right to detain U.S. citizens on U.S. soil indefinitely and with NO PROCESS WHATSOEVER..."

C'mon, writes Jeff the Baptist, "Bush honestly has had better things to do."

Reader Toqueville has a candidate: Former world chess champion Bobby Fischer.

Don't miss the rest of the comments, here.

December 22, 2004 | Permalink | TrackBack


Carolyn Elefant recommends an eye-opening article by Arnie Herz:

"I've always been a proponent of flexible schedules, particularly for attorneys with young children or other non-delegable family obligations -- and that's one reason why I so strongly endorse the solo practice option. But as the article posted by Arnie describes, there are other flex time options as well."

On My

December 22, 2004 | Permalink | TrackBack


If you employ anybody, think about your incentive programs, urges Mike Fox on Jottings by an Employer's Lawyer. "They may not be carrying the kick you had hoped for," Fox writes.

Amen! Another hint: Read Matt Homann's Resolutions for Lawyers. If you have to pick one to make an employee happy, try this one -- your team won't believe it.

December 22, 2004 | Permalink | TrackBack


If you're an IP practitioner and you have ever wondered how much to focus on geographical indications, you can stop. I/P Updates tells you why:

  • Gain concrete insight into the economic opportunities of geographical indications (GI) here. (Focus: Europe)
  • Read an update on a World Trade Organization (WTO) discussion of whether to extend GI protections of wines and spirits to other products.
  • Learn the news of a WTO dispute-settlement panel decision that the European GI registry violates the WTO intellectual property rights agreement.

December 22, 2004 | Permalink | TrackBack


It's A Wonderful Life: The true story of the South Harwich, Mass., campaign to name Paul Pimental postmaster. Courtesy of May It Please The Court.

When life isn't wonderful and the government makes it worse : Michael Cernovich, who also writes this blog, has something to say about throwing doctors in prison.

December 22, 2004 | Permalink | TrackBack

December 21, 2004


Once upon a time, the California Supreme Court held a national magazine liable for revealing that a man had been convicted of a felony (an armed robbery that included "a gun battle with the local police"). Why? The Court felt it was an invasion of privacy.

One day, 30 years later, in Gates v. Discovery Communications, Inc., the California Supreme Court overturned the decision and declared that people are free to tell the truth about others' past crimes. Excellent, declared blogfather Eugene Volokh, who calls the decision "a victory for free speech."

Find out why here, as Volokh quotes from his 2000 article, "Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You."

December 21, 2004 | Permalink | TrackBack


Wonder how good your RSS feeds are? You should, says May It Please The Court.

After reading J. Craig Williams' suggestions, Legal Blog Watch is taking a direct hint (hat-tip to Tom Mighell) and tweaking its format. Instead of two columns per day, we're trying little postlets instead.

Happy surfing. I look forward to any feedback here.

December 21, 2004 | Permalink | TrackBack


After reading up on the difficulty that North Dakota workers have in finding affordable representation for worker's comp cases, Carolyn Elefant wonders,

"Is there some business model that an enterprising attorney can develop to find a way to make money off workers' comp cases while providing a decent level of representation? ...If tort reform succeeds in capping attorneys' fees and recovery, would potential PI claimants have as much trouble as finding an affordable lawyer as workers' comp claimants in North Dakota?"

December 21, 2004 | Permalink | TrackBack


Okay, solos, small firms and study groups: Matt Homann's so in love with his conference call service that he got them to pony up free stuff.

Here's the deal: Matt says if you call the number listed here you'll get either one free web conference, with the included conference call, OR the first month free of their monthly flat-rate services, OR 10 percent off a toll-free reservationless conference call.

December 21, 2004 | Permalink | TrackBack


'Twas the Night Before Booker ... and other new holiday lyrics for lawyers, courtesy of Juan Non-Volokh and The Volokh Conspiracy. (Don't miss the hilarious links below, especially the red-faced professor who was too cool for school...) Michael Cernovich says they're good, but the "master of the pop-culture exam," is a former professor of his wife's...

MELE KALIKIMAKA. J. Craig Williams has done some pricing research on the holidays, and it ain't pretty.

LUV YA, CUZ. NO, REALLY ... Look what's legal in 19 states, courtesy of professor Volokh.

December 21, 2004 | Permalink | TrackBack

December 20, 2004


Attorneys who embezzle: More than we know?

Carolyn Elefant examines the arrest of former big-firm partner Jamie Perdigao for embezzling as much as $20 million from his law firm.  Over on, she's wondering about his firm's legal exposure --  and whether other firms should be worried, too:

"I wonder whether Perdigao is the exception to the rule who just became so brazen that he got caught -- or whether there are other attorneys at firms, large and small, who steal from clients and their fellow partners albeit in smaller increments.  Love to hear the inside scoop from any readers."

What do you think?


J. Craig Williams raises an eyebrow at a recent $1 billion federal judgment against junk e-mail and offers some practical advice to the bench.

Speaking of spam, The Common Scold tackles the latest urban legend. If you have a cell phone, you really want to read this.

Jetsons-style patent filing for $329

Why go through the minutiae of filing a patent when a machine will do it for you? Talk to Bill Heinze, who writes about a company that has automated the process of preparing and filing a provisional patent application. They'll do it for just $329 (or $529 if they also do the drawings), he reports. While there's some risk to a mechanized app, Heinze says on I/P Updates, there could also be a benefit:
"This type of technology might be an excellent way to get more-detailed invention disclosure documents from inventors so that their attorneys can do better work. And, as every patent attorney knows, when the client is in a pickle, filing a thorough invention disclosure document is often better than not filing at all."

Lies, damn lies and media reports on polls

Do 44 percent of Americans really want to curtail the rights of Muslim Americans? Professor Orin Kerr examines a pollster's math and discovers -- gasp! -- media spin on the story. As J. Craig Williams writes here, I've been doing some thinking about spin lately myself.

New procrastination technique: Write lyrics

Apparently NoDoz works for some people. Juan Non-Volokh reports the exam procrastination techniques of one student he knows, who has 99 problems but civil procedure ain't one.

December 20, 2004 | Permalink | TrackBack

December 17, 2004


"I'm sorry I'm a plagiarist, please don't sue me"

What do the Talmud, Ralph Waldo Emerson, Composer Anthony Kelley and Writer Malcolm Gladwell all have in common?

For one thing, experience (of one kind or another) with plagiarism. For another, they crop up in Bill Heinze's thoughtful essay response to The Chronicle of Higher Education's recent article on plagiarism. Don't miss his intellectual and real links to I/P infringement. (This is the same Chron article that got Volokh Conspiracy blogger Orin Kerr's attention here.)

On being the Grinch

Mike Fox blogs a friend's thoughts on why timing is everything -- even when you're terminating an employee.

Be it resolved then

...that ye shall run a better law practice in 2005, with Blogger Matt Homann tapping your shoulder. Persistently. Like water torture, this guy. Like a mother who's always right. Resolutions for lawyers:

  • Day 14
  • Day 13
  • Day 12
  • Day 11
  • The whole kit and caboodle here.

At the watercooler

May It Please The Court goes to lawyer movies! Read or listen to Blogger Mike Geoghegan's review of "To Kill a Mockingbird," starring Gregory Peck as Atticus Finch.

Would you like to contribute to J. Craig Williams' blogs, too? Tell him so here.

Professor Eugene Volokh has a holiday gift suggestion for the 1L, 2L or 3L on your list.

One parting thought for the weekend: Since liposuction and implants are legal, Michael Cernovich writes, what's the problem with baseball and steroids? As always, he invites your comments.

December 17, 2004 | Permalink | TrackBack


Tort reform: Are conservatives hypocri-, er, fair-weather federalists?

Professor Orin Kerr has a question for you on The Volokh Conspiracy:

"Are conservatives hypocritical for favoring federal tort reform? After all, conservatives are usually in favor of limited federal government. When it comes to tort reform, however, many conservatives sing a different tune..."

Professor Eugene Volokh weighs in with a lengthy answer here -- as do a growing gaggle of folks at the bottom of this post.


Get smarter -- new surveys on pricing, and workers' comp

Mike Fox writes of his disappointment in a new study on disparities in compensating African Americans for back injuries on the job. He notes, "One of the researchers noted that there had been some expectation of differences, but not the contrast that was found..."

Read the MIT Sloan School study that lead to this conclusion by Matt Homann: "What should we take away from this study?  Remember, it is not always about price.  It is about trust, competence and convenience."

At the watercooler

Slow Friday? Nap more soundly by lowering your blood pressure with this.

December 17, 2004 | Permalink | TrackBack

December 16, 2004


San Francisco's sweeping suggestion: Ban guns

Blogfather Eugene Volokh raises an interesting point about the sweeping gun ban San Francisco supervisors proposed today.

Here's the scoop: The Associated Press reports that San Francisco supervisors, no strangers to controversy, have voted to put a gun ban on the 2005 municipal ballot. The proposal would:

  • Prohibit almost everyone except police, security guards and military from possessing firearms in the city.
  • Bar residents from keeping guns in homes or businesses.
  • Prohibit the selling, manufacturing and distributing of handguns and ammunition.

Noting that San Francisco's foray is the latest in a series of gun control restrictions around the nation, professor Eugene Volokh indicates he can understand why gun rights advocates find it hard to believe "no-one is trying to take people's guns." He notes,

"I take it that abortion rights activists in California wouldn't be persuaded by anti-abortion activists' arguments that "Oh, don't worry, we won't ban abortions in California, since obviously we wouldn't have the votes; we're just trying to ban them in Texas." Presumably the abortion rights activists would say that they care about what they see as the fundamental rights of people all over the country. Likewise, I would think, with gun rights activists."

What do you think -- common ground?

The end of lawyer jokes

This latest post from Michael Cernovich renders them unnecessary, in my opinion. We can just read the headlines about the rule of law instead...

Honey, you might have to hide that Wolverine costume...

First fan sites, now massively multiplayer online games (MMOGs): Marvel Comics is suing over the game "City of Heroes." Joystiq gives kudos to Fred von Lohmann's piece, "Et tu, Marvel?" in which von Lohmann warns:

”...If the court accepts Marvel’s notion that playing Wolverine or the Incredible Hulk online is unlawful, you can expect a chill to spread through all the MMO universes. Rights holders will begin insisting that MMO operators police their games for unauthorized elements -- robots that look too much like C3PO, uniforms that look too much like Captain Kirk’s, haircuts that mimic Bart Simpson’s, in-game face paint that evokes KISS, or blonde vampire slayers named Buffy.”

The burden of production

...for an employer under McDonnell Douglas v. Green may be light, but it's still real, warns Mike Fox. Here's his cautionary tale of how a prima facie case remained intact. On Jottings by an Employer's Lawyer.

At the watercooler

Burning question #476-a: Does that little plastic divider piece go in the front or in the back? TGIF, says Bill Heinze.

Yes, Herb Caen would freak: The Common Scold likes an alternative Internet radio program, but wonders about its name...

December 16, 2004 | Permalink | TrackBack


Scarier than Manhattan rents

Think Manhattan rents are scary? Even more frightening is this woman's story of renting an apartment in New York, as relayed by J. Craig Williams on May It Please The Court.


Change your Outlook

The easiest marketing technology for your firm -- and yourself -- is right at the tip of your fingers, writes Monica Bay. So join the minority and use it. On The Common Scold.

EDD: Danger, Will Robinson!

The dangers of electronic data discovery (EDD), including the proposed 9th Circuit rule, courtesy of J. Craig Williams' Tech Channel.

Everything you (and your IP clients) need to know about inventing


One of seven, courtesy of Bill Heinze's "TGIF for the Seven Deadly Sins (of invention, that is)."

On I/P Updates.

At the watercooler

Warning: Reading Todd Zywicki's post, "Best Country Single of the Year," may cause permanent damage.

Nikki Finke's "free legal advice to the $700-an-hour schmucks screwing up the
Disney courtroom drama
," as described by John Ghazvinian. He edits Mediabistro's daily media news feed.

December 16, 2004 | Permalink | TrackBack

December 15, 2004


State v. Yarbrough: A brother's motion for reconsideration

A 2L Yalie, Chris Muha, is looking for help with a motion for reconsideration in State v. Yarbrough. Earlier this month, the Ohio Supreme Court overturned both a murder conviction and a death sentence for Terrell Yarbrough for the 1999 murders of two college students.

Why? And why is Chris Muha involved? The Volokh Conspiracy's Orin Kerr has the story here.

Meet Judge Wapner

Well, almost. That's how J. Craig Williams says he feels after sitting as judge pro tem in a local court. Check out the four small claims cases he heard and his rulings.

Was justice served? Tell him here on May It Please The Court.

Bl**dy hilarious, your lordship!

Bill Heinze describes how Lord Sainsbury, U.K. Minister for Science & Innovation, outlined Britain's position on the EU Software Directive -- and how, reportedly, laughter from assembled software developers may have sped him back to the drawing board. On I/P Updates.

Boyfriend is a dirt bag

Following up on State of Washington v. Oliver C. Christensen -- as discussed here in "If only Mom would stick to searching my room"-- Michael Cernovich weighs in.

His conclusion:

"Boyfriend is a dirt bag, but the Washington law protects his privacy. If you don't like it, write the legislature: Tell them to change the law.  But don't ask the Washington Supreme Court to reach an activist result."

Don't miss his reader comments. On Crime & Federalism.

December 15, 2004 | Permalink | TrackBack


"Ring around the jury?"

Once upon a time, a lawyer's colleagues recommended he wear a wedding ring in order to better impress juries. Only he wasn't married. So he asked The New York Times Magazine's ethicist, Randy Cohen, what do you think?

Today, blogger Carolyn Elefant weighs in with some additional, practical questions.

What do you think -- if the litigator wears the ring, is it deceitful or decorative? How about hair dye? Or assuming an accent? Comment here at

When TMI (too much information) is a good thing: Florida v. Nixon

Musing over Monday's 8-0 decision by the Supremes in Florida v. Nixon, Carolyn Elefant says you should document, document, document so it's not your word against the client's. She writes:

"...any time there's a matter requiring client authorization - be it a settlement proposal or a controversial trial strategy, it makes sense to present the options to the client in writing and seek written approval before moving ahead."

How to keep your pilot project aloft

The Common Scold has some recommended reading for law firms, particularly those beginning to embrace "project management" protocols. The case study: On-air Wi-Fi.

Oh, so those Abu Ghraib photographers can relax, then...

If the president signs the bill as expected, taking a photograph of a person's private parts without their consent will become a felony -- depending upon where it's taken, writes Michael Cernovich. The author of Crime & Federalism notes the exceptions, including prison work, here.

At the watercooler

Check out the "Plight of Conservatives in Academia," by professor Orin Kerr. In which "a pseudonymous assistant professor writes about the burdens of being a conservative student and then tenure-track professor." After which the author of Legal Blog Watch has to search out a paper towel to remove a spray of caffeine from her laptop...

Coming Friday: J. Craig Williams unveils a special treat from his fellow Podcaster, Michael Geoghegan, in "MIPTC Goes to the Movies".

December 15, 2004 | Permalink | TrackBack

December 14, 2004


The job search: "Oh, my old boss loved me!"


Here's one way to make sure -- before you name references. From Jottings by an Employer's Lawyer.

Bloggers heart Delaware

Courtesy of Eugene Volokh of The Volokh Conspiracy.

Patent practitioners: The doctor is in

I/P Updates offers this advice, stemming from yesterday's majority decision by the U.S. Court of Appeals for the Federal Circuit in Versa Corporation v. AG-BAG International Limited:

Separated at birth?

I wonder if the Supremes would agree, now that they've seen him in action in Ashcroft v. Raich:

Is VC blogger Randy Barnett really guess who -- or perhaps guess who?

C'mon, weigh in on this ponderous legal debate.

Casting call: Who plays the blogfather?

At the watercooler

Is Social Security "stupidity insurance"? Todd Zywicki responds to e-mails from readers who have strong opinions about his previous post on the riskiness of reform, in which he asks,

"...what's the problem? Workers won't be forced to take any substantial risk that they don't want to take and there seems to be nothing stopping them from taking the low-risk, low-reward path if they want to..."

BASEBALL!! The Common Scold's on Daddy Watch. And there's more at the bottom of this post: "Meanwhile, back at the Bronx..."

December 14, 2004 | Permalink | TrackBack


Great. Is that guy litigating your divorce, too?

Once upon a time, a man was injured in a car accident away from the job. His employer had a plan that was designed to advance him money for accident-related expenses.

Only his attorney refused to sign an agreement that the plan would be reimbursed first if he won any compensation from the other party in the accident.

What's the end of the story? Did the man get his advance $$$ anyway? Did he win or lose his appeal to the 4th Circuit Court, in which his attorney argued that denying the benefits was wrong under ERISA?

Find out here on Jottings by an Employer's Lawyer.

What's in a name: Famous trademarks

Bill Heinze has two bookmarks for any brand marketer -- not to mention I/P attorneys:

  • What it takes to be a famous mark if you're claiming someone's diluting the mark. This list of 16 links includes an October 2004 uber-report by the International Trademark Association and lots of international data.
  • Here's how bad faith registration decisions break down in the Uniform Domain Name Dispute Resolution Database.

The professor is in

Why lawsuits aren't "nongovernment actions," via Eugene Volokh of The Volokh Conspiracy.

All ye law geeks

Gather 'round. The Common Scold posts a link to a new law technology discussion group on Google. Crime & Federalism recommends Google Gmail for all law types -- check out what a couple of his readers (thus far) think of this advice.

Wonder if any of this applies to you? Assess your geek factor here, courtesy of May It Please The Court.

At the watercooler

Road rage is going to look calm in comparison to this, writes Monica Bay.

Juan Non-Volokh notes that Esquire's hosting smackdown numero dos: William F. Buckley against Gore Vidal.

Randy Barnett is surprised to report that television interviews of jurors from the Scott Peterson trial have reinforced his faith in the jury trial system for criminal cases. Here.

Michael Cernovich reviews a new book from the Cato Institute, "Go Directly to Jail: The Criminalization of Almost Everything." He writes:

"The government only goes after real criminals," you think to yourself. The latest offering from the Cato Institute says: Think again.

December 14, 2004 | Permalink | TrackBack

December 13, 2004


Ashcroft v. Raich transcript now online

Courtesy of Blogger Randy Barnett, who does just a little Monday afternoon quarterbacking of his performance. Here on The Volokh Conspiracy.

Supremes and CERCLA

J. Craig Williams says the Supremes have rocked his world with today's decision in Cooper Industries v. Aviall Services. Read May It Please The Court for what he thinks this means for companies that planned to volunteer to clean up their land -- and sue former owners to share the costs. Here's's story, too.

Religion on the job

Jottings by an Employer's Lawyer on worship, work and how the two can collide:

Workplace Fairness has a primer on religious discrimination here, behind their disclaimer.

Lani Guinier: "Nannygate" or "Quota queen"?

Today's pop-quiz: Do you remember why President Clinton abandoned Lani Guinier's nomination. Hint: Those who guess "nannygate" will earn severe punishment via public ridicule -- especially if they're a major news network.

To wit: Eugene Volokh points to a post that excoriates today's rash of media reports that Guinier's child care history scuttled her federal job. The Volokh Conspiracy blogfather wants your help either to correct media reports or to correct the blogger:

"I express no views on whether Guinier's work was in fact misrepresented; but the rest of the item seems quite right to me. Unless there's something about the Guinier story that I had also missed -- and if there is, please let me know so that I can correct the post -- this seems like a nontrivial error by the media. They're not just wrong here, but they're wrong in a way that falsely accuses someone of violating the law. That doesn't speak well of their trustworthiness in other fields."

$$$tratospheric rates and "stealth pro bono"

Following up on recent discussions about low hourly rates, Carolyn Elefant weighs in on the other end of the scale. "Can an hourly rate ever be excessive?" she asks.

Probably not if you're a solo and doing as much "stealth pro bono" as's author surmises.

CRM for lawyers

"Gobble, gobble," says Monica Bay, in a long post on Lexis-Nexis' acquisition of Interface and its customer relationship management software. Her headline's a nod to Wolters Kluwers' recent acquisition of Summation Legal Technologies.

Bay says, "use of CRM software  is pretty much a litmus test as to the firms that are moving to a "corporate" model of operation, from the traditional "eat what you kill" mode of operation..." What do you think? Tell The Common Scold.

At the watercooler

Um, does any state have a law against public kissing? Via The Volokh Conspiracy.

Scott Peterson verdict: death.

December 13, 2004 | Permalink | TrackBack


If only Mom would stick to searching my room...

Once upon a time, a mother listened in on her daughter's conversation with a boyfriend. When Mom learned Boyfriend had committed a crime, she turned him in -- and testified against him. Then what happened? Hint: Don't assume parents get a pass from federal wiretapping laws if they're acting to protect their children.

Here's the rest of the story as J. Craig Williams sees it on May It Please The Court.

Blakely's future decided today?

How does Blakely v. Washington apply to the U.S. Sentencing Guidelines? The Volokh Conspiracy's resident criminal law geek, Orin Kerr, says he's among the attorneys who are wondering whether the Supremes will hand down their decision today, via United States v. Booker and United States v. Fanfan. More here.

Over at Crime & Federalism, Michael Cernovich notes that crim law blogs have exploded in the past six months and provides a terrific guide.

From one lawyer to another: @*$%!!

I've reached a point where I'd rather go up against an attorneys who let off steam every so often with a stream of profanity but let me know clearly where they stand rather than the attorneys who'll publicly smile and then turn around and stab me in the back.

More Carolyn Elefant at this post, "A lawyer calls for civility." On

Alleging age discrimination on Capitol Hill: How it's different

Check out Mike Fox's first impressions of an age discrimination lawsuit that former employee Rita Bastien brought against Sen. Ben Nighthorse Campbell (R-Co.). Jottings by an Employer's Lawyer raises interesting details about the Congressional Accountability Act of 1995 that I never knew. Think employees can sue members directly for violating one of the 11 employment laws wrapped into this act? Think members pay any settlements or fines out of their own budgets? Think again.

Patent freeware

I/P Updates is offering readers a free patent application form "Fee Transmittal for FY 2005" updated with last week's changes. Blogger Bill Heinze says the form's in edit-friendly PDF format, including automatic date entry, fee calculation and tabulation, and a saved file name footer for ease of use.

Note: Don't miss his red ink.

Exam horror stories

Here. You'll either thank Michael Cernovich for feeling your pain -- or thank heaven you're no longer in his shoes. (Read the great comments.)

At the watercooler

VC Blogger Jim Lindgren's got your pop culture 4-1-1 right here. Apparently Saturday Night Live's not waiting around to see whether Fox News performs its own internal investigation into employee Bill O'Reilly's alleged sexual harassment of a young female producer. Over at CBS, the question is whether to release a full report of an internal investigation into Rathergate.

The Common Scold on David Wells -- and his book.

Whither the Fourth Amendment: The curious tale of John Perry Barlow and his strip-search. (Hat-tip: Ernie the Attorney.)

December 13, 2004 | Permalink | TrackBack

December 10, 2004


Grokking copyright infringement

With the news that the Supreme Court grants certiorari in the Grokster case, VC blogfather Eugene Volokh points us to his former writing on the subject.

Two-time losers

[That's] Probably what two Oregon Agriculture Department officials are feeling like as the 2nd discrimination suit in which they were the key actors went against the state, this time a loss of $425,000...

as Mike Fox tells it, on Jottings by an Employer's Lawyer.

A moment of peace in the wine wars

The Volokh Conspiracy's Todd Zywicki writes that he is "surprised (and delighted) to see that the Washington Times today heavily discusses Wine Wars in a house editorial on the wine cases."

At the watercoolor

File this under "It's a felony as soon as it happens to me, pal": The Video Voyeurism Prevention Act. Via The Volokh Conspiracy.

How to Sleep the Day Away and Earn Your MBA at the Same Time. On May It Please The Court.

Lessons On Dealing With Jerkiness. From Jottings by an Employer's Lawyer.

December 10, 2004 | Permalink | TrackBack


Secret bloggers: Why associates "hide behind their html"

"Should associates blog anonymously to protect their careers? That's the question..."

...asks our Common Scold, as she reviews an article in December's ABA Journal. She quotes bloggers on either side of the aisle (veiled v. unveiled) and wants to know what you think here.

More phishy business

I/P Updates continues to arm us against online identity theft and fraud. Today's bookmarks:

The complete primer on section 1981 statute of limitations law

Here, illustrated with Cross v. Home Depot, or one man whose claim was his failure to be promoted from Assistant Store Manager to Store Manager. Courtesy of Jottings by an Employer's Lawyer.

Top legal thinkers contest

First, Volokh Conspiracy blogger Randy Barnett posted that blogfather Eugene Volokh is listed in a Legal Affairs contest to name the top 20 legal thinkers. Then he read Orin Kerr's parallel post on the subject and had this to say, "Immediately upon posting this, I saw that Orin beat me to the punch, though much more sardonically..."

At the watercooler

TGIF says -- er, sings -- Bill Heinze.

Today's Yankee update from Monica Bay: Who was offered arbitration and who wasn't.

Juan Non-Volokh pulls the towel off a columnist's message in "The Syndicated Racism of Sam Francis" and then links a response by Francis' distributors, Creators Syndicate. To The Volokh Conspiracy's anonymous blogger, it's all there in black and white.

December 10, 2004 | Permalink | TrackBack

December 09, 2004


Pickering prickles -- and it ain't pretty

By now, most of you know that Judge Charles Pickering, frustrated since January in his attempts to sit on the 5th Circuit Court of Appeals, as nominated by President George W. Bush, has retired.

But he had a little something to say before he walked out the door, as Volokh Conspiracy blogger Orin Kerr points out. Pickering's "raw deal" aside, Kerr writes, "remarks like that don't help his legacy."

Story problems for patent lawyers

Who said lawyers didn't need to know math? Check out the new USPTO fees in action: Bill Heinze links a filing fees example here.

...and computer problems for patent lawyers

This also just in:

The United States Patent and Trademark Office (USPTO) is releasing updates to the Patent Electronic Filing System (EFS) software in response to passage of the Consolidated Appropriations Act of 2005, on Dec. 8, 2004. This software must be installed as of Dec. 23, 2004, in order to submit any electronic patent filings.

Fortunately, I/P Updates has the answers here -- including information on the software's upgrades, data updates and links to learn more. Thanks, Bill.

Ashcroft v. Raich or Feds v. Meds

Professor Randy Barnett, who argued California's side in Ashcroft v. Raich, recommends a few "particularly insightful analyses" of the case here.

How do you make ends meet when you hang out your own shingle?

Carolyn Elefant invites you to use her blog,, to post your best advice to other solos and small firms. She offers up some of her own, too, taking issue with a recommendation to swap work for free office space.

December 9, 2004 | Permalink | TrackBack

December 08, 2004


Military justice and Lawrence v. Texas

"In the military order must come first. Order is the highest military virtue, not because order is good in itself, but because order in the military leads to liberty at home. "

Read more of what former soldier and current blogger Michael Cernovich has to say about military justice and justices in the military. On Crime & Federalism.

Habla Espanol?

How to improve your chances of practicing law in Iowa, courtesy of Carolyn Elefant's

Who pays for discovery?

Careful what you wish for, warns J. Craig Williams on May It Please The Court:

Over the years, the general rule has been that the party producing discovery pays to produce it, with some flexibility depending on an array of factors. There have been some recent rulings to the contrary when it comes to electronic discovery.

Enter the Law Technology News Awards contest

The Common Scold wants you to apply if your work qualifies as:

  • IT Director of the year
  • IT Champion
  • Most innovative use of tech in law firms
  • Most innovative use of tech in legal departments
  • Most innovative use of tech at trial

Nuts! Laptops deal low blow to male fertility

The Volokh Conspiracy's Orin Kerr links a new study on the effect that holding a warm computer on your lap can have on sperm count.

What about women who work on laptops? I did some surfing of my own and am chagrined to read in The Globe and Mail that "There are no known studies of the effects of laptops on women's fertility." Hmphf.

At the watercooler

Prof. Volokh continues to bird-dog fairness in media, with this post on Slate and this post on CBS's decision to have its publicists reach out to bloggers. Extra: The blogfather opened his CBS post up for comments, so have at 'em!

Don't wait until 2005 to act on this resolution, recommends Matt Homann. You can work on the rest of his to-do list later.

More "BASEBALL!!" -- check the bottom of this post.

December 8, 2004 | Permalink | TrackBack


A phishy business: Protecting against identity theft

Phishermen are the best of the worst Internet criminals -- people who hijack your or your corporation's brand name to victimize consumers online, typically via e-mail. Bill Heinze has a great self-defense guide -- what phishing is, what you need to know to protect yourself and your trademark, and what to do if the bad guys sink the hook.

Cost to Burger King of settling alleged sexual harassment of teens

A million whoppers, more or less, says Mike Fox.

Cost of improper sexual conduct by the Air Force's top lawyer

Another black eye, Mike Fox calculates. He doesn't hazard a financial guess, but writes:

Coming on the heels of the long-running scandal of how sexual assaults were handled at the Air Force Academy ... this is clearly not the Air Force's shining hour.

New York vote to reduce mandatory drug sentencing

...gets a thumbs-up from professor Orin Kerr on The Volokh Conspiracy.

Patents 4-1-1: Breaking news

I/P Updates has important news:

  • Think Bill's beaten media here: New patent fees started yesterday.
  • The U.S. Patent and Trademark Office has improved private PAIR (Patent Application Information Retrieval)
  • European Patent Org expands to 36 states
  • You can download a free presentation on patent infringement damages.
    • At the watercooler

      • TV lawyers, the next crack in our civilization...

      I love Mark Donald's rant on the new television season, wherein he gnashes his teeth over public perceptions of attorneys for Texas Lawyer:

      I am not asking for Atticus Finch-godliness from fictional characters -- I know a lot of attorneys who are anything but saints. But if "Boston Legal" represents a sea change in the public's acceptance of the image of lawyers as intractably negative, isn't this cause for concern?

      • Whew! I mean, we wouldn't want to invest all that money in the athletes...

      Olympic brand police get cracking on NY 2012, reports Bill Heinze.

      • Basketbrawl

      Ten charged, half of them fans, reports Juan Non-Volokh on The Volokh Conspiracy

      December 8, 2004 | Permalink | TrackBack

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