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March 31, 2005

Bracewell & Patterson Giuliani

The Volokh Conspiracy's Orin Kerr points to Christine Hurt's scoop on Rudy Giuliani's new job: Opening a New York office for this Houston-based firm. Don't miss the comments on Hurt's post on The Conglomerate, which include a great link to the blog Rudy Giuliani for President ...

March 31, 2005 | Permalink | TrackBack

The "old folks" win twice in Smith v. City of Jackson

Mike Fox reports that the elderly in the work force picked up a second trial victory yesterday. One result of Smith v. City of Jackson, in Fox's words, "blocks the EEOC from going forward with a proposed regulation that would have allowed employers to differ medical benefits to retirees based on whether or not the former employee was eligible for Medicare."

Related links:

Mike Fox: "Supreme Court -- 'Adverse Impact Lite' Theory Available Under the ADEA"

Tony Mauro: "Supreme Court Widens Age Discrimination Protections"

March 31, 2005 | Permalink | TrackBack

Deliberative process and "the recent spasm of Schiavism"

Norm Pattis thinks the right-to-left wrangling over the late Terry Schiavo's last days is just the latest in a long line of  indicators that elected officials are willing to risk permanently altering the judiciary.

What do you think -- how far will Congress go to circumvent the deliberative process? What do recent trends mean for new appointments to the bench? Comments are open.

March 31, 2005 | Permalink | Comments (0) | TrackBack

Get paid to blawg

Okay, bloggers, get your resume on. Carolyn Elefant, Buzzy award winner and mentor to many solos, has posted a job offer. She writes, "Wanted Immediately:  law student or college student to assist with several upgrades to the site and restoration to its original format ..." 

Elefant (who's a pleasure to work with, I can confirm), seeks a student with:

  • Blogging experience ("plawdcasting" experience or abilities even better).
  • Rudimentary knowledge of HTML code (or ability and willingness to learn a couple of quick basics).
  • Strong Web-based research skills. 

More here ...

March 31, 2005 | Permalink | TrackBack

"Epic" endangered species battle continues

In "Both Sides Turn to the Courts to Litigate Environmental Laws," J. Craig Williams  writes:

"Late last year, the Bush administration changed regulations to allow development to move forward if there were late discoveries of endangered species on the property. Environmental groups fought back, and the dispute has now spilled over into the courts. Not once, but twice. The suits argue that the critical habitat designations do little to save species, but drive housing costs though the roof ..."

March 31, 2005 | Permalink | TrackBack

"The Ninth Circus" and Grokster

Mike Cernovich has a hilarious pointer to a blogger who has strong opinions about Grokster. He writes:

"I've heard people refer to the Ninth Circuit as the Ninth Circus before, but I've never seen someone stick with the theme for several hundred words ..."

More here.

March 31, 2005 | Permalink | TrackBack

March 30, 2005

Smith v. City of Jackson: "Adverse impact lite"?

"The most significant labor case on this year's Supreme Court docket was handed down this morning, with a somewhat muddled result," writes employer's lawyer Mike Fox in his assessment of the Supreme Court's reversal of the 5th Circuit's decision, rejecting the theory of adverse impact under the Age Discrimination Act.

In "'Adverse Impact Lite' Theory Available Under the ADEA,"Fox opines on the ruling's effect on the ADEA, Title VII, the RFOA clause, and the Supreme Court's 1991 decision in Ward Cove, before he adds:

"All of that is a considerable mush of legal arguments that will take some time for the lower courts (and me) to absorb, but while we do have adverse impact under the ADEA, it is fair to call it "adverse impact lite." Not terribly palatable to employers, but certainly more so than the full-weighted version, which could have been forthcoming."

What do you think?


Technorati: SCOTUS

March 30, 2005 | Permalink | Comments (0) | TrackBack

The real deal on IP litigation and valuation

Rees Morrison takes aim at a Patent World article that reports the average cost of patent litigation is almost $2 million, based on a 2003 survey of IP attorneys. In Morrison's opinion, the article leaves too many questions unanswered -- and his questions are quite educational themselves:

"Wouldn't it have been useful to suggest the ratio between litigation costs and the damages reasonably at stake?  If the average ante for a suit were $2 million, but the average recovery facing the litigants were $50 million, that doesn’t sound like an exorbitant transaction cost or a paltry return on investment. Does "bringing" a lawsuit mean carrying it through trial or through an appeal; could it mean only the preparation for and filing of a lawsuit? We need deeper understanding about the typical duration and resolution of the cases that made up the average."

Want to learn how to valuate your client's IP? Bill Heinze recommends this free teleseminar at 1 p.m. EST on April 7. The instructor is someone who obviously hopes to get your business -- a PricewaterhouseCoopers director -- but the agenda looks good. Here it is:

  • Why is IP valuation important?
  • What factors make IP valuation difficult?
  • What are the pros and cons of valuation methods?
  • What is Real Option Valuation "ROV"?

March 30, 2005 | Permalink | TrackBack

Court TV casting call: Are you the one?

Bob Ambrogi shares a casting call from Stick Figure Productions, which is casting a reality show from a young attorney, or 3L, who wants to be the next great defense attorney. And Ambrogi has your first case: "Defending Stick Figure in a bias suit for discriminating against older lawyers ..."

March 30, 2005 | Permalink | TrackBack

The future of Tory v. Cochran and "death of a giant"

The death of Johnnie Cochran, the lightning rod litigator who told the jury at O.J. Simpson's homicide trial, "If it don't fit, you must acquit," has elicited posthumous notice from a couple of bloggers -- one procedural (blogfather Volokh), the others admiring, ad hoc obits (Norm Pattis and Michael Cernovich).

Eugene Volokh notes that Cochran's passing will affect the Supreme Court docket. In Tory v. Cochran, Volokh writes, the Court was,

"... considering whether and when courts can enjoin libelous statements. Tory was enjoined from saying bad things about Johnnie Cochran. Cochran died today, which means the injunction will likely be automatically lifted under California law."

In an ad hoc eulogy, Norm Pattis admires Cochran as first and foremost an advocate. "He wasn't perfect," Pattis accedes, after writing,

"He burst some common bubbles: Only the guilty are convicted, the police do not lie, power can be trusted. He had courage and his courage made it safer to be an American. Cochran was not an oracle. He did not write books about what we should think, feel or do with. He was a trial lawyer, and he was at his best in the thick of battle, when a man or woman's fate hung on the next question he would ask."

Mike Cernovich, who just recently graduated from law school, writes: "There's only three people I regret not having met -- Edward Bennett Williams, Johnnie Cochran, and Dr. Eugene Scott ..." and tells why here.



March 30, 2005 | Permalink | TrackBack

More from blogs -- March 30

Rees Morrison: "Weed-whacking litigation costs: Arbitration clauses, staffing and digesting transcripts: Vincent DiCarlo posted a short piece entitled "how to reduce the high cost of litigation" ... All the advice mows down the weeds of excess litigation costs, but a few seemed especially cutting edge ..."

Mike Cernovich: "Crime & federalism wins in the circuits: In United States v. Lopez, 514 U.S. 549 (1995) the court, for the first time since 1937, struck down a law because it exceeded the scope of Congress' commerce power ..."

Bob Ambrogi: "A blog on torts from a Tennessee trial lawyer: John Day, a Tennessee personal injury lawyer, has launched a blog focused on torts: Day on Torts. A partner with Branham & Day in Nashville, Day describes himself as ..."

J. Craig Williams: "I knew you were going to read this, but then you already told me, didn't you? You see, MIPTC has that supersecret tracking software. Every time you click, we track. Even when you search. ;-) ..."

Bill Heinze: "Who owns stem cells? The patent landscape for both adult and embryonic stem cells is very crowded, with hundreds of issued patents having claims to methods of isolating stem cells ..."

March 30, 2005 | Permalink | TrackBack

Supremes talk Grokster

From Tony Mauro's story on yesterday's spirited Grokster debate in front of the Supremes, it doesn't sound like Justice David Souter's lack of a personal computer slowed him down any. (Imagine his clerks: It's Monday -- quills and parchment or marble and chisels?)

Mauro's got a great description of the conundrum before the Court, as boiled down by Justice Antonin Scalia's use of Xerox as an example:

"... Scalia likened Grokster to the inventor of the Xerox photocopying machine, who, Scalia said, surely must have known that his initial cash flow would come from customers making illegal copies. Such innovators would be reluctant to create new products, Scalia said, if the high court laid down a rule that would allow copyright suits to shut them down "right out of the box." But other justices also fretted that the millions of illegal downloads cited by the entertainment industry have created a business founded on illegality. ..."

More blogging on Grokster:

SCOTUSblog: Court conflicted over Grokster. Excerpt: "

"[Movie studio counsel Donald B.] Verrilli's argument placed the heaviest emphasis on this "business model" argument, premised on the claim that Grokster and StreamCast simply adapted the old Napster file-sharing software so that they could avoid copyright liability, even while profiting handsomely from it. But his emphasis upon that argument -- strongly seconded by Acting Solicitor General Paul D. Clement, arguing for the federal government as amicus -- led Justice Sandra Day O'Connor and others to suggest that the remedy should be an "active inducement" claim, rather than a secondary copyright infringement claim. Justice Ruth Bader Ginsburg gave voice to a concern that seemed to be troubling a number of her colleagues, too -- the proper legal standard for judging secondary infringement in the digital age. She and others several times asked the attorneys to spell out their interpretation of the Sony Betamax standard, and to articulate why they thought it might not be adequate. (The Sony standard has usually been understood as barring secondary copyright infringement if the developer has created a product that has the capacity for "substantial non-infringing uses" that were "commercially significant.") ..."

Joho the blog: Grokster roundups. Great links to IP law geeks.

Legal Blog Watch: Awaiting Supremes response to MGM v. Grokster. Links to Lawrence Lessig, EFF, The New York Times, The Times of London.


Technorati: grokster

March 30, 2005 | Permalink | TrackBack

March 29, 2005

Awaiting Supreme response to MGM v. Grokster

As geeks said their prayers last night, on the eve of Grokster's hearing before the Supreme Court, The VC's Orin Kerr posted this shout out, asking to hear from anyone who waited in the crummy weather for a seat at the arguments. (Update: Kerr heard from one attorney who waited in line, Bruce Boyden, and has posted an update here.)

Even as I type, 28 of the world's largest entertainment companies are making their case against Morpheus, Grokster and Kazaa software. The question at hand toes "the border between copyright and innovation," as the Electronic Frontier Foundation site states. "When should the distributor of a multipurpose tool be held liable for the infringements that may be committed by end-users of the tool?"

In other [grossly unsophisticated] words, should we ban a technology because some people do illegal things with it?  Yesterday, ALM's National Law Journal aired its own debate, with former Solicitor General Theodore B. Olson arguing that file sharing is theft and Charles S. Baker, counsel for Streamcast, responding that Grokster is not Napster.

The issue kicks the media industry right in its, er, business model transition. Case in point: In the opinion of the The New York Times' editorial board, published yesterday, Grokster's business model "relies on theft" (it sells advertising on peer-to-peer file sharing, extracting value even if the sharing is illegal), intellectual property is "unquestionably under assault", and the Court and Congress "should not let technology evolve in a way that deprives people who create of the ability to be paid for their work." The first graph sounds like it could have been written by The Times' own attorneys:

"[W]hen the Supreme Court takes up the issue this week, we hope it considers another party to the dispute: individual creators of music, movies and books, who need to keep getting paid if they are going to keep creating. If their work is suddenly made "free," all of society is likely to suffer."

"Never have I seen The New York Times get it so wrong," posts Lawrence Lessig in rebuttal. By way of contrast, Lessig reader Gareth Simpson links this opinion by David Rowan in The Times Online. Rowan, who invokes the Sony Betmax case, argues:

"Why should the music industry be able to close such communications channels? Just because technology comes along and disrupts existing business models, should copyright owners not find clever ways to adapt, rather than suing 12-year-olds and fighting software developers in court? If the studios do win, it will be the consumer who loses. The next generation of digital music players, Internet telephony, TV recording equipment -- all will suffer from a new legalistic caution that will stifle progress."

Click here for Lessig's BitTorrent link of all the briefs in Grokster.

Click here for the Electronic Frontier Foundation's page of links and information about Grokster and supporting documents.

I welcome your comments.

Technorati: grokster

March 29, 2005 | Permalink | Comments (1) | TrackBack

More from blogs - March 29

Randy Barnett: "Grading Justice Kennedy: My short essay (7 pages) "Grading Justice Kennedy: A Reply to Professor Carpenter" forthcoming in the Minnesota Law Review is now available for downloading ..."

Juan Non-Volokh: "Title IX Protects Whistleblowers: Today's Supreme Court opinion in Jackson v. Birmingham Board of Education holds, 5-4, that Title IX protects whistleblowers who accuse their universities of ..."

Orin Kerr: "New U.S. News Law School Ranking: While the U.S. News rankings shouldn't matter as much as they do, it's newsworthy that the new law school rankings reportedly are out ..."

J. Craig Williams: "Megamonolithic Law Merger Mania: News on the Street. It's another big merger. ... It's a new law firm. Pillsbury Winthrop, formerly known as PMS, is merging with Shaw Pittman. 900+ lawyers ..."

Monica Bay: "Mistakes We Make: In the latest issue of Small Firm Business, we posed a question to some of our technology experts: "What's the biggest mistake that small firms make when using trial technology?"

Bob Ambrogi: "Shouldn't it be 'Among Lawyers'? Five legal bloggers known for their insights into legal technology have launched a group blog devoted to discussions of that very topic, which they call Between Lawyers ..."

Bill Heinze: "A Primer on Open-Source Software for Businesspeople and Lawyers"

March 29, 2005 | Permalink | TrackBack

March 28, 2005

Reed Smith: Today Munich, tomorrow-ish Paris

Pond-hopping continues! I read that Reed Smith has expanded its European presence by acquiring another law firm, this time in Munich, Germany, one week after another firm, Clifford Chance, pulled Briton Peter Cornell across the pond to right their damaged ship. A golden nugget in Jeff Blumenthal's report on Reed's acquisition of a seven-lawyer practice group from Luther Menold, a law firm affiliated with Ernst & Young, is how the deal was done:

"Jordan said Reed Smith officials were introduced to the Munich group through a mutual client, Federated Investors. There will be two partners located in the new office, Stefan Kugler and Michael Fischer. The group expects to begin operations no later than May 1. They are joined by one of counsel, four associates and several support staff."

"Jordan said the Sarbanes-Oxley legislation has caused problems for law firms affiliated with accounting firms in terms of their ability to do business in the United States, and Kugler and Fischer were looking to merge their practices into a large American firm."

Makes me wonder about the diversified support Lord Falconer could recruit for the UK's new initiative to allow outside investors to own law firms and even take them public. I'm still mulling Carolyn Elefant's concerns about that policy.

Oh -- and Reed's next target is Paris, Blumenthal reports.

March 28, 2005 | Permalink | Comments (1) | TrackBack

Judge's public pillow talk triggers bias claim

"Anyone here eat at Feby's Fishery in Wilmington, Delaware, on February 15? If so, did you happen to overhear Superior Court Judge Peggy Ableman's chitchat with her husband over dinner? One witness said she told her husband that "she would get the last word" and that the man on trial before her "would get the death penalty ..."

Read the rest of the story in "I'll have mine fried, please," posted by Norm Pattis. As you'll see, he's kicked up quite a debate on Crime & Federalism.

March 28, 2005 | Permalink | TrackBack

Ripple effects of India's patents bill

Now that India, the world's fourth-largest manufacturer of generic drugs, is poised to make it a crime to copy patented drugs, neighboring countries such as Bangladesh with no such restrictions are lining up to capitalize on world demand for cheap meds, Bill Heinze reports.

It's not just drugs -- mobile phones, computers and other patents are included in India's Patents Bill 2005, as Heinze explained in this post last week. Heinze's post includes links to the Asia Times, describes the voting coalition and lays out arguments by and for developed and developing countries alike.

Heinze's evenhanded approach creates a great case study of the ethical and market issues in conflict. Here's a snapshot:

"... International aid groups have strongly criticized the legislation as being harmful to developing countries, which depend on inexpensive generic drugs imported from India. But the government has said that patent recognition is an essential precondition for India's drug industry to further its own drug research and development and attract foreign partners ..."

March 28, 2005 | Permalink | Comments (0) | TrackBack

Transcript: Orin Kerr, Hugh Hewitt talk Schiavo

The Volokh Conspiracy's Orin Kerr posted a transcript of his on-air conversation with commentator Hugh Hewitt and former assistant U.S. attorney Andrew McCarthy. Here's a pre-quiz for discerning readers: Guess who said this?

"...[W]hen life is at stake, we can't talk about what's plausible and what's reasonable, if there's a way, that's a legal way under the circumstances, to error on the side of life, I think we're obligated to error on the side of life. And that's certainly what Congress intended."

Related posts:

March 28, 2005 | Permalink | TrackBack

Five-second therapy for solos

Carolyn Elefant does right by your Monday:

March 28, 2005 | Permalink | TrackBack

How to meet a legal blogger -- or just look like one

  • Legal bloggers to meet up Wed. in Chicago

You have a Wednesday dinner invite, if you're a legal blogger or want to meet one. Bob Ambrogi reports that the American Bar Association's tech show is being kicked off by "BlawgConnect.2005 -- the largest assembly of law bloggers ever (35, by my count)." Go! Meet an amazing bunch of people and consider staying overnight to take in Ambrogi's appearance Thursday "as part of a panel on "Cost-Effective Sleuthing on the Internet." More here.

  • Legal blog panel at ALM's CIO conference April 6-7

Monica Bay writes that she's leading a Thursday panel for this conference called, "Views of the Future from Different Pasts: An interactive panel discussion focusing on cutting-edge technology and related business issues." She's lined up Steven Levy, director of information systems for law and corporate affairs at Microsoft Corp.; Ian Miller; Laura Owens, a top attorney with Cisco Systems Inc., who wrote the scathing "Change or Die" article that sent the blogosphere into hyper-overdrive; and Jonathan Wong, CIO of Gibson, Dunn & Crutcher.

March 28, 2005 | Permalink | TrackBack

March 25, 2005

Verdict in on "stupid" jury remarks

Bloggers Eugene Volokh and Norm Pattis, wildly divergent in writing style, are today united in their message to Los Angeles District Attorney Steve Cooley: Shaddup.

"My fair city's own district attorney, Steve Cooley, who is quoted as saying that the jurors in the Robert Blake trial were "incredibly stupid," writes Volokh. "Yup, that will make voters feel really good about you: When you lose your case, you publicly blame citizens like them. Doesn't show a great ability to understand how your audience is going to react to your words, it seems to me. And, curiously, an ability to speak carefully and in a way that doesn't alienate your audience is a pretty important skill for a lawyer ..."

Pattis writes:

"I have lost my share of trials, even high-stakes trials attended by the media. It hurts. You sometimes wonder what the jury was thinking, and then the doubt turns inward, and you start gnawing your own innards: How could I have failed in such a case? But one thing I have never done is call a jury "incredibly stupid" ... Wish I were practicing in L.A. It looks as though there is plenty of stupidity present in the county. As I see it, a good share of it is sitting in the District Attorney's office. " More here.

What do you think? Should Cooley be sanctioned?

March 25, 2005 | Permalink | Comments (0) | TrackBack

Starbucks: At what price liquor partnership?

"Is Starbucks evil?" asks J. Craig Williams, who gets right to the point in this post about Starbucks' decision to partner with Jim Beam to offer coffee liqueur. He reports that an investor, Pax World Funds, has pulled the plug on its $23.5 million investment in the coffee giant -- after first requesting Starbucks to drop the alcoholic concoction.

Williams writes:

"What? Did they think the "bucks" part of the name had nothing to do with profit? Liquor makes money; it has always made money and it will continue to make money. If there's one constant in the world ... well, add a few more like tobacco, gambling ... and you get the idea. The question I have is this: Will Pax World's investors back up the decision to back out of Starbucks, and likewise boycott their morning fix? Or will the profiteers back out of Pax World and instead invest in another mutual fund with profit as a pure motive?"

What do you think? Williams is open to comments here.

March 25, 2005 | Permalink | TrackBack

Bookmarks for lawyers

Billable hours have got to be dropping worldwide, given the extraordinary number of excellent law-related sites that were launched or recommended or both by legal bloggers this week. Here are some I've yet to link:

March 25, 2005 | Permalink | TrackBack

March 24, 2005

Clifford Chance, this long-running soap opera must end

When it comes to Clifford Chance, blogger Bruce MacEwen's patience is at an end. In an open letter to Peter Cornell, the British barrister recruited to right this damaged ship, MacEwen gets right to "the core of what got Clifford Chance in this toxic state":

The trouble with Clifford Chance's record, in his opinion, is as follows:

"Confronting the fundamental lockstep/eat-what-you-kill disparity with obfuscation, temporizing, and pretending to look the other way rather than with a cool assessment of their strategic objectives in coming to the States and what techniques are best suited to achieving those goals. That five years have gone by is, well, too bad, but Cornell has made nothing if not a statement by relocating to New York and I believe he can seize the moment ..."

Find out how here.

Related stories

March 24, 2005 | Permalink | TrackBack

Kerr to Hewitt: Can you make a constitutional case for Schiavo?

Update: Professor Kerr posted on 3.24 that he was scheduled to appear on Hugh Hewitt's radio show Thursday afternoon -- did anyone catch it?

The Volokh Conspiracy's Orin Kerr has issued a gentlemanly challenge to conservative commentator Hugh Hewitt to make a constitutional case for reinserting a feeding tube into the comatose Ms. Schiavo.

And as near as I can tell, Hewitt has responded with a gut-level value judgment -- rather than a strong articulation of the legal merits Ms. Schiavo's parents' case.

To this observer, as Kerr narrates here and here, Hewitt rather surprisingly seems as willing as Congress to circumvent the current American judicial process, not to mention the constitutional roles of the three branches of government.

Here's what I mean: Hewitt writes,

"The crucial problem with the proceedings to date is that the people who ought to [be] Terri's guardians -- her parents -- are not, and the man who is, Michael Schiavo, holds that position by operation of his status as Terri's "husband," when from the facts known to all, he has lived his life in recent years in such a way as would be conclusive evidence of estrangement in any divorce court in America. I think this strange and troubling situation is at the root of all the dismay with these proceedings, and that Michael Schiavo's illegitimate status as guardian by operation of Florida law raises a claim under the 14th Amendment that ought to have been examined fully and ruled upon, and that there is at least an arguable claim of unconstitutionality of any "guardianship" statute that ignores such facts.  I cannot say "substantial likelihood of success" as I haven't researched all the relevant law and precedent ..."

Um, what? What would the ramifications of this argument be for any divorce after a long separation? For custody? How for community property?

The entire back-and-forth between Hewitt and Kerr -- which is being conducted in a wonderfully professional tone, I'd like to note for the record -- is a perfect example of why judicial precedent and the Constitution exist.

And that is Kerr's bailiwick, as he demonstrates:

"The problem with having courts follow the statements of individual lawmakers and commentators is that their views are not subject to the constitutional lawmaking processes. Being outside of the lawmaking processes, these individualized expressions of intent cannot provide a sound standard for interpreting statutory commands. Legislation is usually the product of compromise, and different legislators and commentators have different goals, hopes, and aspirations. Following the expressed views of any one individual or faction would allow that person or group to bypass the Constitutional lawmaking process and get their version of what they hope or wish the law did enacted into law without being subject to the Constitution's requirements. The Supreme Court expressly counseled against this in Circuit City Stores v. Adams, 532 U.S. 105, 120 (2001):

'We ought not attribute to Congress an official purpose based on the motives of a particular group that lobbied for or against a certain proposal -- even assuming the precise intent of the group can be determined, a point doubtful both as a general rule and in the instant case. It is for the Congress, not the courts, to consult political forces and then decide how best to resolve conflicts in the course of writing the objective embodiments of law we know as statutes.'

  A sensible approach, I think."

Then Kerr gives the last word to Friedman, whose frustrations with politicians and commentators runneth over on today's op-ed page of The New York Times.

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

March 24, 2005 | Permalink | Comments (0) | TrackBack

Volokh: Supremes refuse to hear Schiavo

In the end, Blogger Orin Kerr's prediction was accurate: Blogfather Volokh reports that the Supremes have refused to intervene, siding with Schiavo's husband as courts have for 15 years. Yesterday, after the 11th Circuit denied the request of Terri Schiavo's parents to reinsert her feeding tube, they appealed to the Supreme Court -- as both Norm Pattis and Kerr predicted Tuesday. But it was Kerr who expected the Supreme Court's terse refusal.

Hope Yen of The Associated Press quotes Charles Fried:

"It's totally unsurprising," said Charles Fried, a Harvard law professor and former solicitor general during the Reagan administration. "I don't know how many courts have to turn them down for the message to come across that there is no legal case."

Exactly. As tragic as the outcome of Terry Schiavo's life is, as strange as it may seem to watch Michael Schiavo be advocating for what she wants, even as he is engaged to another woman who is the parent of his child, his response brief says it all:

"That is not an exercise of legislative power, but trial by legislature," the filing said.

Don't take Schiavo's attorney's at their word -- take that of Orin Kerr, in the wake of his dust-up with commentator Hugh Hewitt -- I'll post it in a minute ...

March 24, 2005 | Permalink | TrackBack

March 23, 2005

Bloggers: Schiavo's parents to appeal to Supreme Court

Now that the 11th Circuit has denied the request of Terri Schiavo's parents to reinsert her feeding tube, they have vowed to appeal to the Supreme Court -- as both Norm Pattis and Orin Kerr predicted. The question is what will happen next. Here's a user's guide to what bloggers are saying today about the case:

The Volokh Conspiracy

The Common Scold

Crime & Federalism

Please add your links below. Thanks.

March 23, 2005 | Permalink | Comments (0) | TrackBack

UK law firms to go IPO?

Update: Rees Morrison posted on 3.24 that there is another GC group forming in the UK.

Carolyn Elefant isn't completely sold on the alleged consumer benefits of a new British initiative to allow outside investors to own law firms and even take them public -- she even goes so far as to invoke the E-word [Enron].

According to this report on Newswire, the government's goal with this radical proposal is better service:

"'These new measures will help [consumers] to receive better service from the legal sector while at the same time enabling providers to develop better, more competitive, consumer-focused businesses,' Lord Falconer said." [Falconer is the lord chancellor and secretary of state for constitutional affairs, according to the report.]

Elefant, however, has a number of questions about who really wins when attorneys work with non-attorneys such as financial advisors and accountants. As Elefant writes on My Shingle:

"I'm all for proposals that open up competition in the legal profession and reduce costs.  But when I read about this idea, all I could think was Enron.  And surprisingly, even though the Tesco multidisciplinary proposal is being debated overseas, I wasn't the only one who thought of the Enron analogy either ..."

Don't miss the comments -- David Giacalone disagrees.

March 23, 2005 | Permalink | TrackBack

In case you think your managing partner won't read The Vault ...

There are plenty of anonymous sites online where you can saddle up and crucify your management anonymously (remember Phil Kaplan's F***ed Company?) But where do you go if you actually want to resolve a workplace concern but want the security of floating your suggestion anonymously?

Bob Ambrogi suggests you try Anonymous Employee, a new Web service that acts as a friendly go-between for you and the brass. As he describes it, Anonymous Employee sounds like a professional, safe and free triangulation mediation service. If you send a message and your employer agrees to participate, Anonymous Employee will launder messages back and forth until you reach a resolution -- or ask the site to recommend professional mediation and or legal advice. (Hmm, this is perhaps further ammunition for Mike Fox's post yesterday: See "What does Project Virtual Attorney mean for employment law?")

Or, if your concern is appropriate, you could dial the Equal Employment Opportunity Commission at 1-800-669-4000. According to Mike Fox, the EEOC hotline is back in business.

I'd love to hear from anyone who's tried either service ...

March 23, 2005 | Permalink | Comments (1) | TrackBack

Just call me "chief pooh-bah the editrix" from now on...

Are simple, realistic titles passe? Rees Morrison thinks so -- after years of trying to simplify attorney titles, he now says it may be time to lay a "gilt" trip on your employees:

"I now confess that the elegance of economy -- a minimalist view of what to call people -- and the predictability of similarity -- everyone knows immediately where they stand -- has lately given ground.  I have come to feel that while law departments operate under head count straitjackets, while base compensation soars up to 2.75 percent each year, while promotion opportunities come about infrequently, why not stroke people with titles?" More here.

Hmmm. I've always been happy with "journalist," but perhaps I'm erring on the side of clarity. Would I really be more likely to stay in a job where all future correspondence to me was addressed as H.R.H. Lisa Stone?

Here's my answer: Only if the title translated into more money in the bank. Otherwise title is just so much hot air. I'm not sure "talk" (title inflation) can ever trump "walk" (salary inflation). That said, compensation is an area Morrison knows something about, too. Perhaps my opinion is informed by the fact that I have been knocking around Silicon Valley for long enough that I have seen cards that read things like "arachnophile" (for a search spider engineer). My favorite? Craig Newmark of, whose card reads, "customer service rep & founder."

Then again, there's enough turnover in the legal world these days that Morrison's advice can't hurt. What do you want -- elevated title, elevated salary or both?

March 23, 2005 | Permalink | TrackBack

March 22, 2005

Open mike: Advice-seeking teen who wants to be a lawyer

In To A High-Schooler Who Wants To Be A Lawyer, J. Craig Williams has posted the lengthy and pretty earnest letter he received from a high school student who wants to be a lawyer.

Here's your chance: What would you have done differently?

March 22, 2005 | Permalink | TrackBack

Are you in touch with your inner Laurence Tribe?

The Volokh Conspiracy's Orin Kerr seeks former Supreme Court law clerks who have (or will) go on the record about their own contribution to witnessing Supreme decision-making. Here's a teaser to Kerr's outtake of Tribe on his role in defining the Fourth Amendment via Katz v. United States:

"I'm proud to say that, as a 26-year-old kid, I had at least a little bit to do with changing that number from four to seven -- and with the argument, formally adopted by a seven-Justice majority in December 1967, that the Fourth Amendment "protects people, not places." (389 U.S. at 351.) In that decision, Katz v. United States, the Supreme Court finally repudiated Olmstead and the many decisions that had relied upon it and reasoned that, given the role of electronic telecommunications in modern life, the First Amendment purposes of protecting free speech as well as the Fourth Amendment purposes of protecting privacy require treating as a "search" any invasion of a person's confidential telephone communications, with or without physical trespass ..."

March 22, 2005 | Permalink | TrackBack

Supreme reversals (x3) for the 9th Circuit

In "0-3 for the Ninth," Orin Kerr reports:

"The Supreme Court reversed the Ninth Circuit in three cases today: Muehler v. Mena (handcuffing during warrant execution didn't violate Fourth Amendment), Brown v. Payton (error in jury instructions in capital case survives deferential AEDPA review), and Rancho Palos Verdes v. Abrams (no private cause of action for permit denial under the Telecommunications Act of 1996) ..."

More here.

March 22, 2005 | Permalink | TrackBack

Big-law blood transfusions, new and old: Clifford Chance, Morgan Lewis, Drinker Biddle and Brobeck

Can Clifford Chance be saved with a transfusion, in the form of Londoner Peter Cornell, or does the firm need to take more drastic action to survive? Anthony Lin with the New York Law Journal reports.

At Morgan Lewis, simply moving people around apparently wasn't enough: Jeff Blumenthal of The Legal Intelligencer reports that the firm just grabbed 11 litigation associates from Drinker Biddle. This gaggle follows the three-partner, white-collar and class action litigation group that left Drinker on March 14.

It could be worse for Drinker and Clifford Chance -- a lot worse. Witness the fine print in the individual settlement agreements worth $23.65 million that 207 partners just inked with the trustee of failed big-law firm Brobeck, Phleger and Harrison, according to Brenda Sandburg of The Recorder.

March 22, 2005 | Permalink | TrackBack

What does Project Virtual Attorney mean for employment law?

Mike Fox wonders aloud after reading the Bruce MacEwen post I blogged yesterday, Moore's Law vs. Flesh & Blood. "Outsourcing and the law -- or is that lawyers?" Fox asks.

MacEwen wrote:

"Cisco and DuPont, together with FMC and Clorox, are developing a "virtual lawyer" to provide automated online responses to routine legal questions concerning, for example, human resource policies.  And lest you think they're all alone out there on the early-adopter curve, they plan to license this tool to all comers..."

What do you think?

March 22, 2005 | Permalink | TrackBack

Want to get sued? Offer job safety training only in English ...

South Carolina's sitting pretty, however, now that they've begun to offer job safety training in Spanish. Mike Fox reports on the appalling statistics behind the decision.

March 22, 2005 | Permalink | TrackBack

Terri Schiavo: The Supremes and a missed opportunity for Americans to talk about dying

Before I begin my rant about news coverage of Terri Schiavo, I recommend you read Norm Pattis and Orin Kerr today.

Pattis, blogging on Crime and Federalism, commends United States District Judge James Whittemore of Florida for his decision not to reattach a feeding tube to Terri Schiavo (see yesterday's post). He writes that Whittemore is "a hero in a black robe" and that the judge,

"...will today feel the scorn of millions. He did what judges are supposed to do last night. He applied the rule of law in a tough case."

Next, Pattis predicts, will come an emergency appeal to the U.S. Supreme Court:

"Expect an emergency appeal, and then a lightning quick hearing in the United States Supreme Court. And then watch Antonin Scalia wet himself. What shall he do? His belief that God is at the heart of it all will pull him in the direction of Ms. Schiavo's parents and the religious right. Yet his commitment to constitutional structure will yield the conclusion this is no federal question. Tough political call for Nino." More here.

The Volokh Conspiracy's Orin Kerr, however, anticipates a different chain of events:

"It seems likely that the 11th Circuit will affirm, and the Supreme Court will deny certiorari, taking us back to where we started before Congress became involved ..." More here.

As the journalist in the crowd, I feel embarrassed by the coverage -- and as a reader/viewer/news user I know I have been cheated. My embarrassment crested yesterday when I actually read some of the endless stream of two-dimensional media polls asking people to weigh in on what various members of Terri Schiavo's family should do -- as well as what the medical profession, Congress, and the executive and judicial branches of federal government should do.

Most of these polls initially irritated me because of their tone. The questions aren't asked to help the reader tap into the agonizing issues related to Terri Schiavo's feeding tube and partial vegetative state. Instead, most questions (and, frankly, accompanying interviews and news reports) on Schiavo read like what they are: vehicles designed to leverage one family's tragedy for advertising ratings and eyeballs, rather than an opportunity to initiate a thoughtful and important conversation -- national and individual.

Eric Boehlert's thoughtful piece in Salon today plays right in to my concerns. I recommend you watch the relatively painless and pretty short ad so that you can read it. In "When Public Opinion Doesn't Matter," Boehlert writes:

"Polls show Americans overwhelmingly support Michael Schiavo's case. Why is the media ignoring them?" More here.

What a tragedy -- what a lost opportunity when the Schiavo family crisis could be used to skillfully initiate a conversation about life-and-death decisions and living wills that so many of us need to have. Why do I say that? Well, barring accidents and a tragedy like Schiavo's, are your parents getting any younger? When's the last time you asked your spouse or aging relatives how to best love them in the end?

Instead of a discussion guide to apply this tragedy to our own lives, we get so much media sausage, as polls go up on Web sites and screens, in glaring graphics and newscrawls, after which answers are slapped up next to text and streaming audio of VIPs rushing in front of microphones to express their [opportunistic] opinions. Yeccch.

I'd love to hear about any terrific coverage that I've missed -- please add to my reading list. Thanks.

March 22, 2005 | Permalink | Comments (0) | TrackBack

Equal opportunity ID theft: Law firm sites that hide everybody

Disappear_1Remember the "decloaking" debate we enjoyed earlier this month? Apparently some firm Web sites even pull a Jimmy Hoffa on top execs.

In today's exhibit, Monica Bay scolds Houston's Baker Botts for pulling a cloak over partner Mark White -- just as soon as White was named chief administrative officer. He has been gone from the site ever since.

What does Bay think? Consider her artwork a leading indicator -- read on here.

March 22, 2005 | Permalink | Comments (0) | TrackBack

Kentucky-fried ethics: Who's next?

Update: Don't miss Carolyn Elefant's post on this topic.

Bob Ambrogi reports that a Lexington, Ky., attorney, Ben Cowgill, has launched the Legal Ethics Blog. (Ambrogi hat-tips David Giacalone for the pointer.)

Read Cowgill's description of his blog as a Web site and portal. To Ambrogi's point, Cowgill has uploaded a fantastic resource, basically re-creating the Kentucky Legal Ethics Library.

That's a high standard, but it's only one state -- who's next? I welcome your recommendations of links to other ethics blogs below, particularly if you specialize in a state.

March 22, 2005 | Permalink | Comments (1) | TrackBack

'Fess up, paralegals: What's the real difference between you and associates?

Need a reality-check on your office's hierarchy and hiring mojo? You should read Rees Morrison's post, "Are There Limits To What Good Paralegals Can Do? Morrison writes:

"Given equal intelligence and work ethic between someone admitted to the bar after law school and a paralegal, both working the same time in a law department, what is the practical difference between them? ... Maybe it's because business unit managers want to be counseled by 'a lawyer,' not simply someone smart who knows the law and can apply it ..."

Here's a shout out to paralegals in the readership, as well as attorneys who work with paralegals:

  • Are experienced paralegals smarter and/or better with clients than the associates at your firm?
  • How do paralegals feel about training new, green classes of associates year after year?
  • What should I ask that I haven't? I see that Enrico Schaefer made this comment on Morrison's blog: "... or maybe its because lawyers can charge twice as much for the same hour of time. Seriously, how many law firms think hard about saving their client money by making sure the easiest tasks are handled by the lowest billing rate? How many firms have business models devoted to saving clients money and adding value to the deliverables?"

I don't know -- do you? I welcome your comments and links below.

March 22, 2005 | Permalink | Comments (0) | TrackBack

March 21, 2005

Who waives arbitration: Court or abitrator?

Mike Fox answers here, after reading of Marie v. Allied Mortgage Home Corp.:

"After Waffle House any other outcome would have been a shock, but the real reason for the 34-page decision was not the outcome, but the issue of who should decide, the court or the arbitrator ..."

More here.

March 21, 2005 | Permalink | TrackBack

Calling all bloggers who will be in Chicago on March 30

Matt Homann has a dinner invitation for you here.

March 21, 2005 | Permalink | TrackBack

Top 10 universities with most patents named as global IP competition keeps boiling

The U.S. Patent and Trademark Office on Friday named the American universities that earned the most patents in 2004, reports Bill Heinze.

This list is the tip of the iceberg on dozens of interesting stories that can and should be told about the battle for research and development funding between the universities on this list, the possibility that U.S. dominance in science and technology could slip away due to current barriers to entry by international scientists, and how a leading Indian scientist recommends India deal with its brain drain abroad.

March 21, 2005 | Permalink | TrackBack

Project Virtual Attorney or how Cisco, Dupont et al. hope to reduce Am Law 100 billings

Read "Moore's Law vs. Flesh & Blood" by Bruce MacEwen.

March 21, 2005 | Permalink | TrackBack

Alton, Wis., attorney v. self

Perhaps better titled, "attorney learns not to store loaded pistol in own pants." Courtesy of The Volokh Conspiracy.

March 21, 2005 | Permalink | TrackBack

Weekend bankruptcy roundup

Here's what you may have missed over the weekend and last week, courtesy of The Volokh Conspiracy's Todd Zywicki:

March 21, 2005 | Permalink | TrackBack

Terry Schiavo's law: Constitutional or "unprecedented and bizarre"?

The Volokh Conspiracy's Orin Kerr has begun a discussion on the constitutional merits of the extraordinary measures taken by Congress and President George W. Bush to reopen the case of Terry Schiavo. Kerr writes:

"It looks like Congress has taken what I think is the unprecedented and rather bizarre step of expanding the jurisdiction of the federal courts to allow a particular District Court to take jurisdiction over a single case, that of Terri Schiavo. Missing from the press coverage I have read is any sense of the merits of the federal case enabled by the new law. As I understand it, a federal court will now review the merits of the state court decision ordering the withdrawal of the feeding tube to see if the withdrawal satisfies federal statutory and constitutional law. Does any one have a sense of what the federal court is likely to do? Are there obvious constitutional problems with the state court order, and if so, under what theories and supported by what precedents?"

Kerr has recruited 15 umpteen interesting comments thus far and more are coming in fast -- read them here. Also, Howard Bashman posts his opinions and an excellent roundup of other reports here and a follow-up here.

Brief background: Schiavo is a Florida woman who has been in a vegetative state since 1990. Her feeding tube was removed Friday on a state court order pursued by her husband. Over the weekend, however, both houses of the United States Congress convened to pass a bill -- which President Bush returned from Texas to sign -- allowing a federal court to review the case. Immediately after the bill was signed, Schiavo's parents filed an emergency injunction to reinsert her feeding tube -- which her husband has long maintained she would not want. The matter now rests with U.S. District Judge James Whittemore, who was nominated to the court in 1999 by President Clinton. (News sources: The AP via ABC and USA Today.)

From my cursory review of the coverage, Kerr appears to be right -- most news reports are not focusing on the appropriate jurisdiction of courts and Congress. Instead, many reporters are grabbing low-hanging fruit, focusing on the political aspects (and advantages taken) by the pro-life v. pro-right-to-die movements, and corresponding quotes by political figures.

Update: Jurisdictions aside, I am not at all compelled by statements from the polarized participants of both extremes in this case -- the lifers and right-to-diers all sound to me like carpetbaggers, lumping their favorite issue on top of Ms. Schiavo, whose cause celebre may have fully obscured her as an individual human in crisis. I keep asking myself: Who are we to say?

Patrick Quinn, who blogs The World Is All That Is The Case on, is eloquent on the subject. Quinn looks at this weekend's legislative and judicial intervention's through the eyes of someone who has been on the inside of the debate -- in the case of his late father. He writes in "Schiavo":

"My father suffered a post-operative stroke in 1983 and lingered in a persistent vegetative state for several years. He weighed about 90 pounds when -- at last -- he died. It's interesting to think of some GOP pig launching a bill "on his behalf"; perhaps sheer outrage at such evil cynicism would've been enough to wake him up.

"PVS is a tragedy for the whole family, as the Schiavo case demonstrates. In the case of my father, I was the Bad Guy -- I wanted him to die..." More here.

What are you finding? I welcome your comments and links below.

March 21, 2005 | Permalink | Comments (7) | TrackBack

March 18, 2005

Want to see the e-mail NASA sent revealing that Northwest Airlines gave the FBI a year's worth of passenger data after 9/11?

...or how about documents from the congressional hearing on how ChoicePoint revealed 145,000 names to identity thieves? Bob Ambrogi can show you where here:

"In recognition of Sunshine Week, the Electronic Privacy Information Center today launched a new online publication designed to help bring attention to secrecy in the federal government. Called EPIC FOIA Notes, it will highlight important documents EPIC obtains under the Freedom of Information Act ..."

March 18, 2005 | Permalink | TrackBack

"There's no crying in baseball"

Picture me over breakfast cereal, trying to explain to my little southpaw exactly why Mark McGwire is in the newspaper, but he's not in uniform and he doesn't look happy.

B-b-b-b-baseball is a sensitive subject for some of us these days, with our should-be heroes doing the walk of shame across the front pages of every newspaper and Web site. Bruce MacEwen's finding comfort in reading the likes of Michael Chabon, while Monica Bay keeps tabs on the Yankees in her left-hand column here. (Don't miss her baseball blogroll below her write-ups, it's the best I've seen.)

March 18, 2005 | Permalink | TrackBack

You're hired to run the Jakarta office. FYI, your team's all in jail ...

In a case that is cheering environmentalists and spooking investors, five Newmont Mining Company executives are being held in a lawsuit that could mean $133 million in fines and sentences of up to 15 years in prison. The complaint? Polluting the ocean and air as part of Newmont's operations -- J. Craig Williams has the story here.

March 18, 2005 | Permalink | TrackBack

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