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September 30, 2005

Historic Armstrong v. Whirlpool: White man bites dog

"A lot of whites may not realize that they have a right to work in an environment that is free of racial hostility." -- David Sanford, plaintiff's attorney, Armstrong v. Whirlpool.

One month ago, about the time Hurricane Katrina tore through historic Basin Street, the Voting Rights Act turned 40. I've been sick at heart since, watching America reveal our (un)buried child -- by which I mean the nation's need to grapple with the issue of race, beginning with our phobias.

Then today, in a true TGIF moment, I came across the fascinating story of Armstrong v. Whirlpool, which is apparently also a legal first. In "Whirlpool: Race Discrimination Lawsuit With a Rare Twist," Reporter Dee McAree, writing for The National Law Journal (yes an ALM mag), begins:

"In a rare move, lawyers suing Whirlpool Corp. over allegations of race discrimination have amended the complaint to combine white and African-American defendants.

"Although whites are not the primary targets of the alleged racial abuse at the Whirlpool plant in LaVergne, Tenn., they allege that they have been subjected to a hostile work environment where supervisors allowed racial epithets and offensive graffiti to run rampant. Armstrong v. Whirlpool, No. 3-03-1250 (M.D. Tenn.).

"The plaintiffs lawyers at the Washington office of Sanford, Wittels & Heisler say that this is the first example they can find where whites and African-Americans have been joined in a lawsuit alleging racial bias.

More here on how whites who originally came forward to support their African-American colleagues are now filing lawsuits of their own. Any estimates of the repercussions of this case from the employee and employer's attorneys in the crowd?

September 30, 2005 | Permalink | Comments (4) | TrackBack

Case example: How Hurricane volunteers are helping lawyers

J. Craig Williams posts the story of how helped one attorney get her practice back together online.  Sounds like there's still plenty of opportunity to help at this site and these others:

September 30, 2005 | Permalink | TrackBack

Word to your litigation vendors: No do-overs

When you hand the reins to another firm to manage a negotiation for you, how do you help steer to success?

"I like to let a law firm involved in the transaction know that they will likely not be the firm involved in the litigation," writes The Wired GC. He has some further thoughts and recommended reading on the topic in "Good Results from Bad Deals."

September 30, 2005 | Permalink | TrackBack

Case study of vision execution

Bruce MacEwen says lawyers and law firms could learn a little something about change from McKinsey & Co.'s analysis of Procter & Gamble CEO Alan G. Lafley.

In case you don't follow consumer products, Lafley was and is a lifer at P&G, who landed on Wall Street with a bit of a splat (my words, certainly not MacEwen's) after multiple profit warnings and a one-day stock price free-fall of 30 percent.

Five years ago, Lafley made quite a name for himself. Today, MacEwen holds up Lafley's record as an example and writes, "Lafley's results speak for themselves:  Revenues up 30% and profits up 70% (to $51 billion and $9.8 billion, respectively)." Why do you or your firm care? More here.

September 30, 2005 | Permalink | TrackBack

Houston's Kirkendall on DeLay's indictment: "Weak"

My e-mail account has received a steady stream of links from a number of you about the indictment of House Majority Leader Tom Delay, R-Texas, particularly in response to Norm Pattis' post about charge-bargaining. One such link is a post by Houston attorney Tom Kirkendall, who writes:

"[A]t the end of the day, this is a very weak indictment. From a strategic standpoint, Mr. Earle doesn't want to show too much of his hand at this point, but a prosecutor should be required to state with a fair degree of specificity the criminal acts that he contends occurred. Mr. Earle has not done that in regard to Mr. DeLay in the current indictment."

Later, in a comments exchange with (some partisan) readers, Kirkendall reaches beyond partisanship to his greater concern about the judicial system:

"[T]there has been a titanic shift on the national political level -- fully embraced by both major political parties -- toward utilizing the power of the state to persecute enemies for either political gain or merely punishment. We are in total agreement that the shift is one that is extremely dangerous to justice and the rule of law."

What do you think?

September 30, 2005 | Permalink | Comments (3) | TrackBack

September 29, 2005

Why did Tom DeLay waive the statute of limitations?

Upon hearing the news that Sen. Majority Leader Tom DeLay was indicted, Norm Pattis both asked -- and answered -- why DeLay waived the statute of limitations. Pattis writes:

"You heard it here first: Tom DeLay will plead guilty to one count of criminal conspiracy in Texas. ... So why am I so sure he'll plead? A line in the indictment notes that his lawyer waived the statute of limitations on the conspiracy charge during grand jury proceedings. Why would a competent lawyer waive a complete defense? Because worse was on the way if he did not.

"Initiates know the practice as charge-bargaining. You see a funnel cloud barreling at you and you ask your local prosecutor, quietly, "on what charges are you willing to take my client if he pleads?" I suspect DeLay will enter a plea late in the year."

The Volokh Conspiracy's resident criminal law prof, Orin Kerr, has taken up Pattis' question, but not Pattis' prediction of a guilty plea, writing:

"It seems more likely to me that DeLay knew the indictment was coming one way or another, and he figured that he was better off politically if he could put off the indictment for as long as possible. But this is just speculation on my part, of course. Do any VC readers with experience in criminal law have additional insights to share about this? "

You should really read each of their posts in their entirety. What do you think?


September 29, 2005 | Permalink | TrackBack

Cernovich on Posner decision: Why can cops break laws to enforce laws?

Blogger Mike Cernovich interprets Judge Richard Posner's  interpretation of U.S. v. Dawson No. 04-2557:

"If government agents are violating a federal criminal law, aren't they guilty?  Doesn't allowing them to admit illegally-obtained evidence confer a windfall upon those criminals?  Doesn't it cheapen the judicial process to require judges to sit on their hands while felonies are committed in their courtrooms?  Posner ducks those questions, and then dresses up his unwillingness to enforce the law as a matter of separation of powers ..."

What do you think? Cernovich's comments are open here.

September 29, 2005 | Permalink | TrackBack

Nominee number two? Meet Maureen Mahoney

HottieArticle III Groupie, who blogs Underneaththeirrobes, has a terrific roundup starring Latham & Watkins partner and supreme litigator Maureen Mahoney. Ms. Groupie (pictured at left) does a terrific study outline of Mahoney's Republican chops, from her donations to the Bush II campaign (and membership in the transition team) to her work with Kenneth Starr to Nina Totenberg's description of her conservative social politics. Don't miss it -- or Ann Althouse's post about what Sen. Harry Reid, D-Nev., just told NPR, which sounds Mahoney-esque too. Hmm ...

September 29, 2005 | Permalink | TrackBack

In the cross-hairs: Legal abortion

AP reporter Jesse Holland, who has done a terrific job covering the Roberts nomination, notes in his report of John Roberts' confirmation that both advocates and adversaries of legalized abortion are eagerly awaiting some hint of where Roberts' gavel will fall. Holland writes:

"Anti-abortion and abortion rights activists both have their hopes pinned on Roberts, a former government lawyer in the Reagan and first Bush administrations. While Roberts is solidly conservative and his wife, Jane, volunteers for Feminists for Life, both sides were eager to see how he will vote on abortion cases. "

While I certainly don't know either, I wonder whether Sen. Russ Feingold, (the lone Democratic presidential hopeful who voted for the candidate while admitting Roberts had left himself "wiggle room" on Roe v. Wade), will regret that he or his staff didn't take these two items more seriously:

  • Roberts and a Man's Right to an Abortion: Ethan Leib, blogging for Prawfsblawg, excerpts a paragraph from the Bray opinion that Sen. Dianne Feinstein, D-Calif., asked Roberts about during his nomination hearings with the Senate Judiciary Committee.  In Bray, Roberts writes:

"There are more interests at stake in the abortion decision than those of the pregnant woman. The government has a legitimate interest in protecting both the unborn child and the health of the mother, Harris v. McRae, 448 U.S. at 324-325; Roe v. Wade, 410 U.S. 113, 162, 164-165 (1973); the parents of a pregnant minor have a valid interest in participating in their daughter's decision whether to carry her pregnancy to term, Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); and the father of the child has a personal interest in the pregnant woman's decision. Thus, unlike the condition of being pregnant, the "right" to have an abortion is not a fact that is specific to one gender. Instead, it is a legal right as to which the law can properly assign different interests to various parties. "

  • NARAL Round 2: No Distortion Here:  See what says about the National Abortion Rights Action League's presentation of Roberts' writings that Roe v. Wade "should be overruled."

September 29, 2005 | Permalink | TrackBack

John Roberts is Chief Justice; Nay votes mirror Rehnquist's

Robertsvote1_1With a vote of 78-22, the United States Senate has chosen John Roberts to be the Supreme Court chief justice who leads America's highest court -- and, as a result,  society -- through the next three decades, assuming he is as long-lived as his predecessor and mentor, the late William H. Rehnquist.

The number of "no" votes was a minority, but it was not small, when placed in historical context. I found this graphic on UW Prof. Charles Franklin's blog, Political Arithmetik. As he notes,

"Roberts drew about double the opposition that recent appointees have faced, with the exception of Rehnquist and Justice Thomas, who was confirmed on a 52-48 vote in 1991."

September 29, 2005 | Permalink | TrackBack

September 28, 2005

Indicted for fraud, Rep. DeLay tells press, "I'm innocent."

Update 9.29.05: Prosecutor Earle has sued more Democrats, the WSJ reports. See the bottom of this post. - LS

Among these many reports on Tom Delay, the majority leader of the U.S. House of Representatives, who has been indicted for violating Texas election laws in September 2002, is a transcript of his remarks to the press. In the link, DeLay cracks a few jokes and then lays into his accuser:

"This morning, in an act of blatant political partisanship, a rogue district attorney in Travis County, Texas, named Ronnie Earle charged me with one count of criminal conspiracy: a reckless charge wholly unsupported by the facts.

"This is one of the weakest, most baseless indictments in American history. It's a sham and Mr. Earle knows it.

"It's a charge that cannot hold up even under the most glancing scrutiny."

The charge did, however, hold up under the scrutiny of a grand jury in Texas. You can read their indictment of DeLay for yourself here, (hat-tip: Orin Kerr) to learn why this $190,000 check is pictured:


The New York Times (linked in the lede) reports that DeLay is being forced to step down temporarily. California congressman David Dreir, who heads the Rules Committee, will fill in.

Predictably, the political blogosphere has exploded in response, with righty bloggers taking up the offensive that DeLay's own script sounds. Witness Powerline, where blogger John says the Bush administration "should take a lesson" from DeLay's "aggressive" public self-defense. Meanwhile, lefty bloggers are gyrating with happiness:  California blogger Chris Nolan goes all Jennifer Beale on us with "Oh what a feeling." Search for yourself here.

It's law and politics. Which is why, having given the first word to Mr. Delay, I'll give the closer to Washington Monthly blogger Kevin Drum, who invokes Election 2006 (and, by default, 2008) as well as an official investigation of Senate Majority Leader Bill Frist's recent stock sale. Drum writes:

"All we need now is a Plame indictment and we'd have the trifecta. Or the pentecta. Or whatever. I can barely keep track of the myriad ethical problems besetting the Republican leadership these days."

"I've long been of the opinion that although Democrats are obviously in trouble these days, it's still the case that they're losing elections by only a few points -- and even a moderate change in the political climate could turn that around. Well, this is it. If Democrats still can't win in 2006, then we've got serious problems."

What do you think?

Update 9.29.05 - Today's Wall Street Journal report (registration or T-Mobile account required) states that Prosecutor Ronnie Earle has sued more Democrats than Republicans. Reporters Jackie Calmes and Anne Marie Squeo write:

"From hard experience, Mr. Earle was ready for that blast [from DeLay's press conference, cited above]. In his own news conference in Austin shortly before Mr. DeLay's, Mr. Earle noted he has prosecuted 15 elected officials during his career, and 12 were Democrats. That reflects Democrats' long hold on power in Texas into the 1990s. Now, however, Texas Democrats don't hold a single statewide office.

"As Mr. Earle put it yesterday, "We prosecute abuses of power, and you have to have power before you can abuse it."

"When Mr. Earle, a former Democratic member of the Texas House of Representatives, won election to the Travis County D.A.'s office in 1976, Texas was still a mostly one-party southern Democratic state. So his anticorruption efforts inevitably focused on Democrats, which made him plenty of enemies in his own party."

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

Carolyn Elefant to you: Read this right now

Carolyn Elefant is adamant about a letter, "How to Succeed as A Lawyer" (Roland Boyd), that was first published more than 40 years ago in the Texas Bar Journal. Elefant writes:

"On the surface, the letter simply dispenses tips from a father to a son on how to succeed as a lawyer, but the subtext gives us a look at a forty-year legal career rich with integrity, satisfaction and optimism ... when we focus all the time on the business of law, we lose sight of the higher purpose we can serve as lawyers, the changes we can make and the people we can help.  If you read Boyd's letter, you'll be reminded of what brought you to law to begin with and why despite the stresses and the problems, you still want to stay."

September 28, 2005 | Permalink | TrackBack

How's your Urdu?

If your legal department isn't outsourcing patent applications overseas, Rees Morrison wonders why. Especially if you aren't outsourcing your company's leases and subleases, trademark searches and registration, Suspicious Activity Report summaries, and other tasks he considers "generally routine."

September 28, 2005 | Permalink | TrackBack

What the world needs now is ... an int'l KM group?

If you think so, read Joy London's post and take her survey.

September 28, 2005 | Permalink | TrackBack

Coast to Coast: Why attorneys resist pro bono

Coast2coast_3 Monica Bay recommends the Williams and Ambrogi's latest Coast-to-Coast program:

"This week's show features Mark O'Brien, deputy director of, and Ken Babcock, exec director/general counsel of the Public Law Center, talking about why lawyers resist pro bono work. Also, our colleague Marcia Coyle, Washington bureau chief for the National Law Journal, reports on whaz happening on with the Supremes. "

September 28, 2005 | Permalink | TrackBack

Equal Opportunity Blogging: MacEwen praises Clifford Chance

Having dispensed with (most of) his tough love, Bruce MacEwen offers support to Clifford Chance in today's post. MacEwen writes:

"This being an equal opportunity blog in terms of eligibility for criticism or praise, today I offer a heartfelt endorsement of what Clifford Chance is doing right -- and add that other firms aspiring to a truly sophisticated approach to their strategic decision-making could do worse than borrow from Clifford Chance's playbook ..."

September 28, 2005 | Permalink | TrackBack

September 27, 2005

MacEwen to Clifford Chance: "Spine. Backbone. Courage."

No, there's no typo in the headlines -- Blogger Bruce MacEwen really typed that message to the leaders of Clifford Chance. Why? He's bitter about a news report that  "data from an internal Clifford Chance CRM system at the Paris office inadvertently came to light, and included -- quell surprise! -- insights into some key executives at major clients including Airbus and EADS, its parent.  Last time I checked I thought that was part of the raison d'etre of a CRM system ..."

MacEwen doesn't let up -- on "the cravenness of Airbus/EADS" or the "unconditional and unilateral surrender of Clifford Chance to the P.C. gods."

This piece is worth a read, if outside pressure has ever rocked you off of your moorings.

September 27, 2005 | Permalink | TrackBack

It's not an F-minus but it's close

The GAO report on the USPTO is in. The title is a masterwork of government-ese and understatement: Report of GAO-05-1008T is entitled "Improvements Needed to Better Manage Patent Office Automation and Address Workforce Challenges."

Hat-tip: Bill Heinze.

September 27, 2005 | Permalink | TrackBack

Will nomination number two follow the Roberts vote on Thursday?

"The Senate vote on John Roberts is scheduled for this Thursday. I wonder how soon thereafter Bush will announce the new nomination. Immediately, I hope," writes Ann Althouse.

For vote counters, I recommend Howard Bashman's recommendation: this report by The AP's Jesse Holland, who reports that Roberts has at least 72 votes, since "Seventeen Democrats have said they will vote for Roberts. All 55 GOP senators are expected to vote for him."

September 27, 2005 | Permalink | TrackBack

Katrina Legal Aid site launches and Doug Caddell's afterstory

Announcing, which Monica Bay describes as "the result of a partnership among the American Bar Association, Legal Services Corporation, National Legal Aid & Defender Association and Pro Bono Net." She writes:

"The center offers a significant number of legal aid, public defender, pro bono and referral resources to persons affected by the hurricanes who must navigate a maze of legal, government and insurance issues, and to advocates and lawyers committed to helping them. It also offers private attorneys information on how they can assist the many legal aid lawyers and advocates in their efforts to serve communities devastated by this tragedy."

Unfortunately, I see that the ABA site for Hurricane Katrina Disaster Resources doesn't link to this site yet -- which raises my concerns that Legal Aid and pro-bono efforts will be sidelined. I'd rather see all these sites come together. Anyone else worried about that? Anyone trying to coordinate that? I'd love to know.

Meanwhile, Monica has received and posted a follow-up email from attorney Doug Caddell (first heard from in "Houston, We Have a Problem"). He writes of his family's experience with Hurricane Rita:

"We were lucky that Rita turned to the north. Other areas were hit much harder, and of course those that were impacted by Katrina and the hurricanes last year in Florida had much more loss than us. The reason I finished this story was not to imply that we were having a difficult time - those hit directly by Rita and prior storms had "real" problems -- but, because I found the exodus aspect to be unique. And also because many of you have asked how we made out. "

September 27, 2005 | Permalink | TrackBack

Wallet wide open, eyes wide shut, Part II

Weighing in on the subject of corporate responsibilities and international markets invoked here yesterday by The Wired GC is Lauren Gelman, associate director of Stanford Law School's Center for Internet and Society. She writes:

"[W]hen we're talking about complying with local law and processes of law in China, we're not talking about principles of due process and fairness that we associate with the U.S. legal system. So the conversation cannot take place as though complying with local law in China is the same as complying with local law in Canada, or France, or Japan.

"I know some perceive my writings on this topic too one-sided. But after spending some time in China this summer and meeting with people there who are hoping that the Internet and blogs and e-mail and search will empower civic discourse, it's extremely frustrating to see U.S. companies run by people I like and respect helping the Chinese government smother that hope."

There's more here.

September 27, 2005 | Permalink | TrackBack

September 26, 2005

Wallet wide open, eyes wide shut? Corporate responsibilities and int'l markets

"What is the right course for an American company doing business in countries like China or Russia?

"Ignore opportunities completely?

"Turn a blind eye and forge ahead?"

So asks the Wired GC, riffing on my recent post about Yahoo's decision to give Chinese authorities access to user e-mails and news that Russia has shown "contempt for the rule of law by seeking the expulsion of Canadian lawyer Robert Amsterdam."

The Wired GC answers his own question:

"I would say "no" and "no."

Bloggers are generally split on the issue, with some calling for Yahoo's boycott and others agreeing with Yahoo that the company's hands were tied by Chinese law. Why does the Wired GC vote no? For the shareholders -- he recommends any enterprise consider applying host government powers to one's own bottom line:

"In the short run, Yahoo's Jerry Yang is correct that companies must observe local laws if they want to do business in a host country. But once they decide to invest there, they are now part of the system. If that system does not comport with basic levels of individual and property rights (and due process), they should work with others to let host governments know that continued investment is contingent upon change. Yahoo may have a different view down the road if one of its lawyers in China is jailed for seeking to enforce legal rights against a recalcitrant government ministry over content restrictions on ...

"This isn't just altruism, either. Concerns about host country legal systems are really part of enterprise risk management." (More)

One media company who decided China wasn't worth the risk is Time Warner, writes Rebecca MacKinnon in her recent post, "Internet Censorship & Corporate Choices." I recommend you read her excerpt of this Bloomberg article in which CEO Dick Parsons describes in detail Time Warner's decision not to agree to ban words such as "democracy" because of how it would look in the United States.

"Companies do have a choice," MacKinnon concludes. "Investors who care about free speech should reward them for making the right choices."

What do you think? As I asked earlier this month, when, whether and how will American e-mail consumers respond to the case of user Shi Tao, the journalist whose private e-mails Yahoo turned over to the Chinese authorities and which were instrumental in his incarceration. Will Yahoo's reputation, credibility and consumer trust truly be damaged, a la Nike after the Vietnam sweat-shop debacle? Will we see a global community coalesce around privacy rights and freedom of speech for individual e-mail users in the next decade, particularly as Chinese Internet consumers gain numbers and, hopefully, power? Will the American privacy movement continue to gain momentum or stall, now that both the House and Senate have renewed a version of The Patriot Act? Or will each individual Web consumer have to reinvent the value online privacy for themselves -- tantamount to child care for working parents?

We know how well that worked.

September 26, 2005 | Permalink | TrackBack

Blawg Review #25: Ambivalent Imbroglio's protest edition

Ambivalentmab_1 Blogger ambivalent imbroglio has done a great job with Blawg Review #25, which he dubs "the Protest Edition." Here's a taster:

"Since 'the largest show of antiwar sentiment in the nation's capital since the conflict in Iraq began' was just last Saturday, I've been thinking a bit about 'protest' as both a way of life and a mode of expression. I realized that, whether they're protesting for themselves or on behalf of others, lawyers are almost always protesting something -- that's their job. Isn't every lawsuit a form of protest against something or someone? Today's Review will highlight a wide variety of such protests that appeared in the blawgosphere in the last week ..."

I'm particularly excited about his pointer to, described as "a new blawg by nine prominent black law professors." I clicked over to the Blackprof's archive, where a read of the post "Racism Phobia," by Washington Law prof. Darren Hutchinson, sent me packing to Bloglines to sign up for the feed. Here's an excerpt:

"People have claimed that government is (was?) completely inept to handle tragedies of Katrina's magnitude, thus negating a role of race. This country has been in a lather over terrorism for the last five years, re-electing Bush, in part, on his perceived "toughness" with respect to terrorists -- real or imagined. Yet -- whites, who largely gave Bush both of his election victories -- seem more comfortable saying that their leader is, alas, pathetic on mass tragedies, so pathetic that he appointed a former lawyer for an equestrian society as head of FEMA -- rather than labeling him racist. Of course, all of these factors -- ill preparation, race, and class mattered. But in a racism-phobic society, the existence of race must be vigorously denied.

"We are still unpacking what happened in the Gulf area. There are a lot of overlapping race, class, and governmental responsibility issues that require attention. Whites have a tendency to engage in willful (color)blindness with respect to race. The current domestic situation allows for an opportunity to document this negative pattern and perhaps make inroads at reversing it. " (Note: I've excerpted a larger chunk than I normally would in order to make sure the context is clear, but you should really read the whole thing here -- LS).

September 26, 2005 | Permalink | TrackBack

Solo practice FAQ -- Add your answers

Carolyn Elefant has launched a fantastic starter FAQ for solo practitioners and is asking for your help:

"The reader's questions and our answers are interspersed below.  Readers, since I've only started one practice, after all, I'm the first to admit that I'm not an authority on all ways to go solo.  What I've learned from blogging here and meeting other solos is that there are as many routes to success as there are shinglers.  So please write in and send comments that reflect your own unique experience. "

Here are the questions being answered in the FAQ to date:

1. How much capital do you think one needs to get started?

2. Did you have clients lined up before you started?  If so, how far in advance did you start discussing your move with prospective clients?

3. Are there any resources you would suggest that I review/read before making the move?  Anything that you think is a must read?

4. I'm thinking of working from home, at least for the first year.  Do you have any views on whether office space is necessary from the get-go?

5. I realize that rates will vary based on factors such as practice area, jurisdiction, etc., but do you know what the range is for professional liability insurance?  Also, do you have a ballpark on the cost of health insurance?

September 26, 2005 | Permalink | TrackBack

Is your ego the reason you're not the Lexus of law firms?

I promise you, this headline really will make sense if you read Bruce MacEwen's Sunday piece, "Lessons from Lexus." MacEwen reads a Barron's article on how Toyota kicked the fannies of older, more established luxury auto manufacturers with the Lexus, and extracts this lesson for law firms: If customer service is beneath you, you don't deserve your Lexus -- or your law clients. And you may not keep them.

Those are my words, not his. For a more elegantly phrased diatribe on extracting revenue from client service, go here.

September 26, 2005 | Permalink | TrackBack

Do you blawg in Massachusetts? Join this list

... compiled by legal blogger Bob Ambrogi.

September 26, 2005 | Permalink | TrackBack

On Hurricane Rita: Right to make much ado about nothing?

Over the weekend, Monica Bay posted e-mails from two Texas attorneys. In the first, "Houston, We Have a Problem," Foley and Lardner's Doug Caddell describes his pre-storm journey to purchase a generator and other supplies for his home near Conroe, Texas. In the second, "Good News from Texas," Craig Ball, who lives about 75 minutes northwest of Houston, describes a blessedly un-Armageddon-like aftermath for his family:

"Some 600,000 in the area are without power as I write this, but will likely get that back this weekend. Gas stations and all Wal-Marts are either closed or stripped bare, so it will take a few days for things to return to normal around the Houston metro area. Hopefully, we can do a better job bringing people back to town than getting them out, but I, for one, am going to stay off of I-45 south and away from downtown Houston for a few days. As I write this at noon on Saturday, the wind and rain have passed and all the effort seems to have been much ado about nothing. But, it was the right thing to do and I'm proud of the community for doing it as well as they did."

On the contrary, much ado about public safety is one of the few things government officials should do and do well, writes Mike Cernovich, pointing to Hurricane Katrina as proof. That's why, in his opinion, voters should hold themselves responsible for electing the right people:

"I'm not sure whether hurricane Katrina taught us that federal, state, and local officials are necessarily incompetent; or whether only the current elected-officials could have guest-starred in "F Troop."  There is certainly enough blame for every level of government to bear.  But putting aside the obvious incompetence of our current officials, Katrina has a broad lesson in democracy.  Your vote has consequences.  The wrong vote could kill you ..."

What do you think?

September 26, 2005 | Permalink | Comments (1) | TrackBack

September 23, 2005

Will insurers dodge Katrina and Rita?

J. Craig Williams wonders aloud in a post that foreshadows the pain of litigation to come. He writes:

"Is the damage to homes from wind, rain or flood?  The damage for many homes in Louisiana and other areas affected by Katrina may be from floods.  But what caused the flood?  To really answer that question, we have to dig into the tort bag of definitions for the terms proximate cause, concurrent cause, principal cause and other exclusions.   In short, and generally, proximate cause means the actual event that set another series of events in motion.  Concurrent cause means two causes, virtually at the same time, that caused the damage.  Principal cause is the choice of one cause from an evaluation of multiple events that caused damage.  Which one applies to damage from hurricanes is an open question.  Did the wind and rain cause the floods?  Did the storm surge?  Did the negligence of the government in maintaining the dikes cause the flooding?  Even if you have this answer, the analysis isn't finished ..."

September 23, 2005 | Permalink | TrackBack

Heartbreaking: "Hurricane Rita Sends Texas Legal Community Packing"

Here's the story by Miriam Rozen for Texas Lawyer about the next hurricane and its effect on the legal community. As a result, I am paying special attention to The Wired GC's post on online legal services. He writes,

"This is clearly an industry in its infancy. But for smaller businesses or the solo GC, why not give it a try? People are buying luxury autos on eBay without ever driving them. Why not find out at $2.99 per minute whether an idea is patentable or whether a potential employee from India would have an immigration problem?"

September 23, 2005 | Permalink | TrackBack

Law firm career path: Up, Out or Director?

So writes Bruce MacEwen, who asks, "Is this a radical repudiation of a time-tested model or a long overdue dose of sanity? One imagines those are the reactions to Allen & Overy's revealing that it's considering a third career path for associates, neither "up" nor "out," but "director ..." More here.

September 23, 2005 | Permalink | TrackBack

Handbook for bloggers and cyberdissidents

Rsf Bob Ambrogi recommends this new publications by Reporters Without Borders: "More than a legal guide, the handbook is a how-to for new bloggers, with chapters on setting up blogs, getting blogs recognized by search engines, and the ethics of blogging. These in addition to chapters on how to blog anonymously, technical ways to get around censorship, and ensuring e-mail is private."

September 23, 2005 | Permalink | TrackBack

Why to proofread before filing your motion

Friday's giggle courtesy of Geoff Gussis.

September 23, 2005 | Permalink | TrackBack

September 22, 2005

Roberts' lucky thirteen: Nomination goes to Senate floor

Five Democratic senators just said no, however.  The AP's Jesse Holland reports that Dianne Feinstein of California, Joseph Biden of Delaware, Edward Kennedy of Massachusetts, Charles Schumer of New York and Dick Durbin of Illinois voted no, with Feinstein saying she knew as little about Roberts after the hearings as before.

The question facing the Senate is whether to oppose Roberts now -- or to focus on the as-yet unannounced second nomination President Bush gets to make to replace retiring Justice Sandra Day O'Connor. Holland writes,

"The Senate's 44 Democrats seem to be split on whether they can, or should, mount even symbolic opposition to Roberts. His confirmation as the 109th Supreme Court justice is assured because most of the Senate's 55 Republicans are supporting him and Democrats have decided not to filibuster his nomination."

Here's what bloggers think: Ann Althouse announces And the Committee votes yes, as does Lyle Denniston on SCOTUSblog. Howard Bashman of course has a running list of news stories.

Wondering how other Democrats were dealing with the Roe v. Wade issue, I clicked over to Ms. Musings, where Christine Cupaiuolo pulls out Wisconsin Democrat Sen. Russ Feingold's public statement on why he voted for Roberts. She quotes Feingold's statement as saying, "Judge Roberts did not expressly say how he would rule if asked to overturn <i>Roe v. Wade</i>. But if Judge Roberts abides by what he said about how he would approach the question of stare decisis, I think he should vote to uphold <i>Roe</i>. He certainly left some wiggle room ..." Cupaiuolo responds, "Er, yeah." 

The Volokh Conspiracy has nothing on the nomination yet, but I'll use Orin Kerr's post, "I'm sure Karl Rove is listening," to transition to the politicking around the next nominee. Prof. Marci Hamilton, blogging on the LA Times' Live Current blog, wonders why the big silence within the beltway:

"The vital question is who will replace Justice O'Connor, if one wants to chart the Court's future. It has been disappointing that the White House has focused on such a small number of women, as though there are not enough qualified Republican women out there. Once Roberts' confirmation was a fait accompli, one would have thought there would have been a lengthy list of distinguished Republican women to consider. In the absence of such public speculation, one can only wonder if the list of white males under consideration for the Roberts nomination is still in play. Female or male, this is the seat that could cause a dramatic change in the Court if an ideologue is nominated."

Over on Postcards from Metroburbia, I was interested to read John Kerry speaks out on Judge John Roberts nomination (includes copy of Kerry "campaign" e-mail). Joe Trippi, in Roberts a Dangerous Bet, quotes Ralph Neas, President of People for the American Way. UCLA law prof Steve Bainbridge has a rather different take in What Expertise Should O'Connor's Replacement Have.

More later ...

September 22, 2005 | Permalink | TrackBack

September 21, 2005

Kozinski vs. Roberts on vote to cite unpublished opinions

Bill Heinze is among the legal bloggers citing today's story by Tony Mauro, which reports that:

"The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007 ... The citation rule change, if ratified by the Supreme Court and untouched by Congress, would end a practice that brought charges of a hidden, unaccountable system of justice against some of the nation's largest and most important appellate courts. The 2nd, 7th, 9th and federal circuits ban citation of unpublished opinions outright, while six other circuits discourage it. "

Mauro reports that 9th Circuit Judge Alex Kozinski lead "a significant faction of appeals judges" against the rule, "complaining that it would exponentially increase their workload by forcing them to polish and beef up the unpublished opinions."

None other than Chief-Justice-in-waiting John Roberts advocated for the change, Mauro writes: "As a private practitioner and then as a judge on the U.S. Court of Appeals for the D.C. Circuit, Roberts served on the advisory committee that recommended the new rule, 32.1. "A lawyer ought to be able to tell a court what it has done," Roberts said at the April 2004 meeting at which the advisory committee first endorsed the rule. "

More here.

September 21, 2005 | Permalink | TrackBack

Best book on gay marriage and "the forgotten Ninth Amendment"

In honor of his own 50th birthday, Norm Pattis recommends a favorite treatise on gay marriage with a mini-essay that has made me think hard about purchasing "Same-Sex Marriage and the Constitution" by Evan Gerstman. Pattis writes that this book:

"... is as close to perfect as a book can get. Gerstman argues that the best manner and means to secure gay marriage is as a fundamental right. Claims under the equal protection clause, he argues persuasively, are destined to fail unless and until some court somewhere declares gays and lesbians a protected class -- not likely. Left to rational basis review, there will always be a reason to discriminate."

"Gerstman deals sensibly with the forgotten Ninth Amendment and asks common sense questions about power, authority and why we have a constitution in the first place. Read the book, and then go sue someone in federal court. Whether gay or not, the freedoms you protect are, ultimately, your own."

More here.

September 21, 2005 | Permalink | TrackBack

Legal writing blog

Do you agonize over hyphen placement? Mike Cernovich says he does, and he's happy to announce that a little blog help is at hand:

"Slowly, and somewhat painfully, I'm progressing from technician to stylist. Given that it takes ten years to master something, and given that I've been working on my legal writing for about three years, I still have a lot of learning to do. I was pleased to learn about a newish blog, "Plain Legal Writing."

September 21, 2005 | Permalink | TrackBack

Supreme Buzz: Senate Committee votes tomorrow

My e-mail in-box is filled with alerts urging me to call my senators and weigh in on the Supreme Court nomination of John Roberts, Bush's choice for chief justice. According to one action alert from Planned Parenthood, the lone woman on the Senate Judiciary Committee, Sen. Dianne Feinstein, D-Calif., is still undecided about hizzoner:

"The Senate Judiciary committee will vote this Thursday. Call Senator Feinstein TODAY! Senator Feinstein is still undecided about her position on John Roberts' nomination to Chief Justice of the Supreme Court. EVERY PHONE CALL COUNTS! If you have already called, thank you. If not, this is your last chance to make a difference with Senator Feinstein."

(Note about California and legal abortion: Given Gov. Schwarzenegger's statement yesterday about Prop. 73, expect to see this issue again and again.)

Planned Parenthood remains opposed to Roberts' nomination according to the e-mail, which cites his "refusal to respond to direct questions about his commitment to protect, and not take away a woman's right to choose." This is the issue some women bloggers and their readers have taken on in the past 24 hours: Whether or not the Democratic minority should or shouldn't invest the time and effort to muster 40 "no" votes, especially now that Senate Minority Leader Harry Reid, D-Nev., has said he will vote no on Roberts.

Don't miss the comments in these blogs -- some readers suggest the Senate quash Roberts in order to demonstrate that SCOTUS candidates must provide more substantive answers to questions. Other readers suggest the Senate focus on grappling with Mystery Candidate Number Two, whom Bush will nominate to replace retiring Justice Sandra Day O'Connor. Speaking of which, I recommend you read the following great pieces on the topic:

  • Who's Next? Supreme Court Scuttlebutt by Emily Bazelon, who reports that Republican women lawyers aren't happy about the women candidates being bandied about, and examines some of the men.
  • Howard Bashman, whose rich list of news articles on Roberts, Reid and tomorrow's vote begins with The Boston Globe's "Senate minority chief opposes Roberts; Reid sends message to Bush on next pick for Supreme Court."

September 21, 2005 | Permalink | TrackBack

September 20, 2005

Introducing the My Shingle Q&A: "Say nay to the naysayers"

Carolyn Elefant -- she of the Law Stars Hall of Fame, as of this week -- kicks off a new question-and-answer feature on My Shingle. She writes,

"Recently, I've been receiving a number of inquiries seeking advice on starting a practice.  I'm going to try to address as many as I can, as quickly as I can, in what will hopefully be a regular "Questions & Advice" column.  If you send me an e-mail with a question, try to eliminate any identifying information so that I can use it in a column.  I'll get in touch with you prior to posting, but it will make my job easier if I don't have to reformulate questions.  With that, my first question topic is how to handle the naysayers, particularly when you're a relatively new attorney ..."

Her first reader question -- how to start one's own firm in the face of overwhelming discouragement -- nets a classically thoughtful, comprehensive answer from Elefant. In 819 words, Elefant does a terrific job of weighing and weighing-in on the question. I think that's why, as a reader, I find Elefant's words of encouragement so authentic.

So, as my own good deed for the day, I encourage you to participate.

September 20, 2005 | Permalink | TrackBack

New York lawyer salary survey: Who brings home $30M?

Okay, kids, it's multiple choice time: Which of these attorneys brings home $30 million a year?

(a) Manhattan DA Robert Morgenthau

(b) The chairman of Sullivan & Cromwell, H. Rodgin Cohen

(c) Judge Judy Sheindlin

(d) Oh please, that's just a rounding error in Dennis Kozlowki's fines

Read Bob Ambrogi for the answer.

September 20, 2005 | Permalink | TrackBack

CT governor forces withdrawal of 'Kelo' evictions

Todd Zywicki's still following the application of Kelo v. New London, so I'm linking his update. He writes: "This may be symbolic, but it is now reported that the Connecticut Governor has used the leverage of threatening to withhold state money for the New London development to force a rescission of the eviction notices reported last week. The politics around this issue continue to remain interesting ..."

On Prawfsblawg, Mark Fenster says Chief-Justice-in-waiting Roberts is a friend to the anti-takings movement. Fenster points to Roberts' record defending a government respondent in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) while at Hogan & Hartson  and writes, "environmentalists and planning advocates can be confident that the otherwise conservative Chief Justice at least understands and respects their arguments -- something that cannot be said of every Bush appointee ..." (More here). To Bob Ambrogi's point, I doubt this will convince Nat Hentoff ... not that the president sought the Village Voice writer's opinion...


September 20, 2005 | Permalink | TrackBack

A business award for small firms

Monica Bay writes: We've "extended the entry deadline for our exciting 2005 Best Practices Awards contest. You can enter until Oct. 28. Details here. (The 'click here' button on the illustration to the right is not enabled.) This is a great opportunity to tell the legal community about your leadership in several areas, including 'bottom line,' client service, community service programs, marketing campaigns (print, TV, radio), outsourcing, professional development and Web sites."

September 20, 2005 | Permalink | TrackBack

Once I buy 20 pairs of plastic handcuffs, my compliance preso is ready for the board!

In a nod to yesterday's 25-year jail terms for Tyco execs, The Wired GC has a sober and sobering take on compliance training. He writes, "Corpedia notes 8 best practices in corporate compliance and training. Practice #2 bears upon the leadership issue: setting the proper tone at the top. Former leaders of Tyco, WorldCom and Enron under indictment were probably not seen by key employees as having the proper commitment and respect for compliance. This may even be true for those Tyco employees who weren’t invited to the party ..."

In her take on Tyco, Monica Bay recommends John Bringardner's LTN "Technology on Trial" report on the technology used in the Kozlowski trials (free and easy registration required).

September 20, 2005 | Permalink | TrackBack

September 19, 2005

Attorney's blog + podcast = $1MM in referrals

J. Craig Williams is quoted in the Sept. 26 edition of U.S. News and World Report in a write-up by James M. Pethokoukis. Pethokoukis writes:

"Attorney Craig Williams says his blog ( and podcast have generated close to $1 million worth of client referrals since they started three years ago. He thinks of his site as 'my handshake to the world.' "

You may be thinking, hey, that's one golden handshake! But as a blogger myself and someone who has watched Williams pour billable hours and capital investment into his blog, his podcasts of each and every single post, his videocasts and his new audio-show with Bob Ambrogi, I'm just relieved, as a reader, to see it all paying off.

September 19, 2005 | Permalink | TrackBack

Corporate Alliance Against Domestic Violence recruiting members

A new U.K. Web site -- -- and its free telephone hotline is the result of a new corporate alliance to combat domestic violence, blogs Mike Fox. Membership is open, states the site:

"Membership is open to any employer, trade union or representative body in the UK. Whilst members are not required to pay a fee, should the Alliance draw on the resources of the voluntary sector for advice, Alliance members will be encouraged to make a contribution. "

Fox links a BBC story that refers to an American effort as the inspiration for this initiative. I'm not sure which site the BBC is referring to -- I don't see a link -- but here are some relevant sites:

September 19, 2005 | Permalink | TrackBack

The politics of patent reform

Bill Heinze writes about the politics of patent reform:

September 19, 2005 | Permalink | TrackBack

Blawg Review #24: Jaybeas Corpus

This gracious and funny 2L (by way of Daphne, AL), Jaybeas Corpus, provides "as a service to 1Ls and 2, 3, and 4Ls who may have forgotten, here are the six steps for making it through your classes.  Feel free to modify as time (and content) permits."

I particularly enjoyed his take where "Grits for Breakfast breaks down the debate over the new gun carry laws enacted in Texas, particularly how many prosecutors are creating their own rules about how to enforce it."

Nicely done.

September 19, 2005 | Permalink | TrackBack

New Death Penalty Wiki

Your help is requested by Mike Cernovich, who has begun the Death Penalty Wiki. Here's his description of how it works:

"There are only two "guidelines."  First, the document name should be the case style with cite to the U.S. Reports.  Second, the beginning of the entry should look like this:
Issue: [One sentence question presented.]
Answer: [Yes, or no.]
See the entry on Roper v. Simmons for an example.

"Of course, the more context you can provide, the better.  But if we do nothing other than provide a list of all the post-Furman cases, and state their holdings, we will be in great shape.

"I hope to hear from some of you soon."

September 19, 2005 | Permalink | TrackBack

New ALM Research Blog

Recommended by Monica Bay.

September 19, 2005 | Permalink | TrackBack

Supreme insights

Lots and lots about the next Supreme Court, from the vote pending on John Roberts to the nomination-to-be to replace retiring Justice Sandra Day O'Connor. Here are some of my favorites:

  • Cloister thyself with open ears

Ann Althouse blogs that she has an op-ed in today's New York Times. Looks like she's respectfully counseling the Chief Justice-in-waiting to keep his ears open.

Howard Bashman (of course) has the ultimate list of op-eds on the subject: here and here, among others.

  • Has Tipper gone brunette?

I absolutely hate it when candidates for national office kiss for the cameras, as Roberts and his wife do here. However, I love it when Underneaththeirrobes elicits this many hilarious comments. Opinions, anyone? (Hat-tip: Ann Althouse)

September 19, 2005 | Permalink | TrackBack

The ultimate metric on BigLaw: Earnings per partner

"Is EPP [earnings per partner], then, ever going to supplant PPP [profits per partner] as the Holy Grail?  Of course not," writes Bruce MacEwen. "Nor should it -- after all, the equity partners put up the capital, take the risk, and at the end of the day hold the keys to the kingdom.  But for insight into how firms leverage themselves and distribute the spoils, it can't be beat."

More MacEwen on "beating the numbers game" here.

September 19, 2005 | Permalink | TrackBack

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