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October 31, 2005

Blawg Review #30: A monster mash

Okay, Halloweenies, whether "You're Going As Someone Who Is Not Going To Be A Supreme Court Justice" or "If You're Going As Some Other Member Of The Bush White House" or "If You're Going As An Author, Librarian, Or Allegedly Infringing Search Engine" or "If You're Going As A Blogger Or A Blawger" or "If You're Going As One About To Explode From The Pressures Of Modern Life In General" or any number of other costumes Denise Howell invented and tucked into her exhaustive wrap-up of last week's legal blogging, you should read Blawg Review #30 first.

October 31, 2005 | Permalink | TrackBack

Is 2005 "tipping point" for solo practice?

Offering up a pile of links as evidence, Carolyn Elefant blogs, "Macolm Gladwell's tipping point phenomenon is probably way over-referenced, and yet I can't help but wonder whether the idea of solo practice is reaching a tipping point in the legal profession.  Indicators abound everywhere.  Consider ..." Read on for the proof she offers for her argument that, "In short, BigLaw's not the prestige ticket it was back in the late 1980's when I graduated from law school."

October 31, 2005 | Permalink | TrackBack

10th legal tech survey by ALM: Dish or dirt?

Is ALM's Tech @ 10 survey valuable to anyone but sponsors? First I came across Blogger Ron Friedmann, who recommends reading it:

"We sometimes forget how much has changed in 10 years. Highlights include the revolution in mobility (laptops, PDAs and BlackBerrys), the adoption of wireless networks, and increasing budgets this year. The complete survey results are also worth reviewing for data on what's in use, market shares of leading products, and law firm tech spending and staffing. The data confirm the growing interest in Microsoft SharePoint, the increasing importance of electronic discovery services, and client use of extranets. " More here.

But then I read J. Craig Williams, who says no, don't bother:

"... really, I don't care about this survey.  Why? Because it misses the mark.  Presumably, ALM conducts these surveys of the big firms based on the general theory that what's good for GM is good for the country, or something like that.  As MIPTC has pointed out before, the big firms are only a small part of the entire population of lawyers.  By conducting and publicizing these types of surveys, ALM misses out on how the mid- to small-size firms use technology ..." More here.

What do you think?

October 31, 2005 | Permalink | TrackBack

Nominee #3: Samuel Alito

Alito_1 Just days after his first choice to replace retiring Supreme Court Justice Sandra Day O'Connor was forced to withdraw from the running, President George W. Bush has nominated a 3rd U.S. Circuit Court of Appeals judge, Samuel Alito, to the nation's highest court. (Read the full text of the president's and the nominee's remarks here.)

I recognized his name instantly for, as PA Liberal blogger Samantha writes, "Alito's most famous dissenting opinion as a judge came when he said he would uphold a Pennsylvania law requiring women seeking an abortion to tell their husbands on the grounds that it did not impose an "undue burden." More here and here on Planned Parenthood v. Casey. Indeed, the abortion issue, rather than being shrouded behind a film of stare decisis, is front-and center now. (Witness this pro-Alito/pro-Bush press release today by the Liberty Counsel, a group with close ties to Rev. Jerry Falwell that refused to support Miers, and this anti-Alito/anti-Bush press release today by the National Abortion Rights Action League. )

For the first time since the president first picked his lawyer for the job, the righty spectrum of blawggers sound united in their compliments of Bush's second third nominee. "I'm very pleased," blogs Volokh Conspirator Orin Kerr, who was joined quickly by co-conspirator Todd Zywicki ("Outstanding pick"). "I think it's a great choice," blogs professor Bainbridge. "A committed conservative whose track record earned him the nickname Scalito ... Altio [sic] wasn't my first choice either (Mike McConnell was). But this is a solid pick that should unite the base behind it."

Indeed, the base is singing a very different tune: "O Happy Day!" writes Carol on, the online community for conservative foot soldiers who rioted over Miers from the get-go. "So he's been confirmed by the Senate twice, has impeccable credentials, and a history as a crime-fighter . . . as U.S. Attorney, he prosecuted white collar and environmental crimes, drug trafficking, organized crime and civil rights violations. Oh, yes -- and he's a member of the Federalist Society. Dems -- filibuster this!"

Indeed, lefty blawggers are sounding the alarm., the liberal alternative to, lists a litany of decisions here as the basis for its editors' claims (in all caps) that "Alito would overturn Roe v. Wade ... allow race-based discrimination ... allow disability-based discrimination ... strike down the Family and Medical Leave Act ... [and] is hostile to immigrants and supports unauthorized strip searches." It's a view shared by the National Women's Law Center, where co-prez Marcia Greenberger today said, "Instead of naming a consensus nominee, President Bush has opted to pick someone who meets the far right’s ideological litmus test." On Blackprof, Adrien Wing laments the message sent by halving the number of women jurists on the Supreme Court.

"Dad's appellate judge becomes the son's Supreme Court justice," blogs Norm Pattis, in Et Tu, "Scalito?", a nod to Alito's successful judicial appointment by the first President George Bush. "And we get the ghost of Rehnquist inhabiting the philosophic zoot suit of Antonin Scalia. Go nuclear? You bet. I'm heading for a bomb shelter. This is the candidate conservatives have been hoping for, and I predict that they'll have enough votes to see this nominee confirmed."

Judge Alito indeed has lots of buddies, Democratic buddies, in the United States Senate, thanks to his previous confirmation-related tours of Capitol Hill. Check out this list posted on In "Dems who voted for Alito," posted on Oct. 28, Blogger krempasky writes:

"So to follow up on Erick’s mention of Alito -- I thought it might be instructive to take a look back to Judge Alito’s first confirmation -- in April of 1990. He was confirmed by unanimous consent -- reported favorably from the Democrat-controlled Judiciary Committee by none other than Joe Biden. Better yet -- nineteen currently serving Senate Democrats were part of that unanimous consent ..."

Read the full list of Democratic senators still in office who voted for Alito here.

A few blawggers are moving past politics to dig into the positions Alito has taken on constitutional issues from the bench, a discussion impossible in re: White House Counsel Miers' record, since she has never worked as a judge. "I am glad to see Bush not shy away from a person with a real judicial record," blogs Ann Althouse:

"The abortion case will surely get the most attention, but issues about religion and the Constitution should come to the fore as well. Alito will, if confirmed, replace Sandra Day O'Connor, and her swing-vote role was especially influential in the cases about the religion clauses. From the little I'm seeing here about Alito, he has a marked sympathy to pleas for accommodation from members of minority religions -- a tendency that alone should shake off the nickname Scalito. (See Scalia's majority opinion in Employment Division v. Smith.) I look forward to a serious analysis of constitutional law issues and intend to do my part correcting distortions as various critics and proponents tear into his record."

If you're writing about Alito's nomination, I welcome your trackbacks below.

October 31, 2005 | Permalink | TrackBack

October 28, 2005

Ethics 101: Miers "should have seen a problem in the mirror"

So many blawgs on Harriet Miers' decision to withdraw her nomination to the Supreme Court, where to begin?

I'm going to begin and end today on The Wired GC, who I think does a terrific job boiling down the situation in which the George W. Bush administration finds itself, and the responsibility Miers bears for this Supreme mess, given her decision to accept this nomination. No matter what your politics, I think a calculated review of her resume and qualifications indicate that Harriet Miers should never have been nominated to replace Justice Sandra Day O'Connor on the U.S. Supreme Court -- or should never have accepted.

WGC gracefully sketches the horizon in a post revisiting his original prediction that Miers would be approved:

"A GC on SCOTUS? (#2)


"Three thoughts:

"1. I should have followed my Roberts "policy" on Miers.

"2. Now the President is over a barrel. If he tries to appease the right, the left girds for battle. If he doesn't, the right is already engaged.

"3. The problem wasn't just President Bush asking Ms. Miers. It was also her saying "yes." If she had taken her nominee screening job seriously, she would have seen a conflict. If she was really looking for nominees qualified at the Roberts level, she should have seen a problem in the mirror.

"While the President was focused on Katrina and Rita, it was Hurricane Harriet that surged over the White House.

"And if Patrick Fitzgerald drops the dime on Messrs. Rove and Libby tomorrow, the President will really have hit the trifecta this week."

Fitzgerald, the special prosecutor in the federal grand jury investigation into who leaked the identity of a CIA operative, is scheduled to announce the results of his investigation later today. For a great news roundup on this loooong series of stories and events, I recommend Linda Feldmann's story in The Christian Science Monitor.

For more on Miers, I recommend you go to and enter "Miers withdraws." Here's what I found.

October 28, 2005 | Permalink | TrackBack

Back to the future: Online legal services

Ron Friedmann recommends a report called "Five Year Review Back to the Future" in LegalIT (UK).

October 28, 2005 | Permalink | TrackBack

Ovitz v. Schulman: Ovitz wins, then loses again

Michael Ovitz, his litigation with Disney still visible in the rear-view mirror, has both won and lost a separate arbitration, writes Cathy Kirkman. She explains: "The case involved a dispute between super-agent Michael Ovitz and Catherine Schulman, who had been hired as president of an entertainment venture to produce feature films. Schulman lost the arbitration, but she successfully vacated the award because the arbitrator failed to disclose that he was handling another arbitration for the law firm representing Ovitz ..."

Related: Bob, we Mouseketeers call this the 'Ovitz clause'

October 28, 2005 | Permalink | TrackBack

Lawyers, Guns and Money: An audiocast

Bob Ambrogi and J. Craig Williams recommend the latest Coast to Coast audiocast, which, in Williams' words, delivers "a rapid-fire discussion about the new law that shields gunmakers from crime-victim lawsuits, called The Protection of Lawful Commerce in Arms.  Our three special guests are Josh Horowitz, the Executive Director of the Coalition to Stop Gun Violence, David Kopel, research director of the Independence Institute and editor-in-chief of the Journal on Firearms & Public Policy and the inimitiable professor Eugene Volokh from the UCLA School of Law whose blog is The Volokh Conspiracy."

October 28, 2005 | Permalink | TrackBack

The tax man cometh, the TaxProf blog delivereth

So sayeth Geoff Gussis in A Plethora of Tax Charts about tax prof Paul Caron's gift to the community.

October 28, 2005 | Permalink | TrackBack

USPTO: Interim guidelines, search templates

Bill Heinze writes two key posts on the U.S. Patent and Trademark Office:

October 28, 2005 | Permalink | TrackBack

Does Missouri abortion law infringe free speech rights?

The AP reports that "[a] Jackson County judge's decision on the constitutionality of a law setting new limits on teenagers' abortions appears to hinge on concerns that the legislation may infringe on First Amendment rights." An interesting debate.

October 28, 2005 | Permalink | TrackBack

Punishing lawyers for frivolous suits -- or human behavior?

"Fools," writes Norm Pattis, in response to news reports that new legislation would punish attorneys for filing frivolous lawsuits. Pattis continues, "Blaming lawyers for the rise in litigation is sort of like blaming doctors for cancer. There are a lot of angry people out there. They'll go to court by themselves if they can't find a lawyer."

What do you think?

October 28, 2005 | Permalink | TrackBack

Did an Indiana state court judge have connections to drug dealers?

Mike Cernovich on the allegations surrounding the ongoing outcome of Harrison v. McBride, which he compares to a "true crime novel."

October 28, 2005 | Permalink | TrackBack

"Why Hockey Players Wear Helmets & Associates Bill 2,200 Hours/Year"

Riffing on a recent piece by Cornell prof Robert Frank, Bruce MacEwen extracts HR management advice for law firms that he sees as future money in the bank. Follow his advice, MacEwen says, and:

"The good news is that, when the tough times return, as they will, you will have a reputation (a marketplace asset every bit as real as its counterpart, loyalty) that will enable you to stand apart from the firms whose recruitment and retention policy amounts to "pay them now, shoot them later." 

How'd MacEwen get here? Find out.

October 28, 2005 | Permalink | TrackBack

October 27, 2005

Nominee Harriet Miers withdraws

The blawgosphere is roiling over White House counsel Harriet Miers' letter to President Bush, asking that he withdraw her name as a nominee to replace retiring Supreme Court Justice Sandra Day O'Connor. (Hat-tip:  memeorandum.)

In his public statement on Miers' withdrawal, Bush indicated that the last straw in the immediate, comprehensive debate over the qualifications of this nominee, was the invasion of the presidential file cabinet:

"I understand and share her concern, however, about the current state of the Supreme Court confirmation process. It is clear that Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a President's ability to receive candid counsel. Harriet Miers' decision demonstrates her deep respect for this essential aspect of the Constitutional separation of powers -- and confirms my deep respect and admiration for her."

Few in the blawgosphere sound surprised -- and right-of-center bloggers are, in their own words, relieved. "So Harriet Miers has withdrawn her candidacy under what seems to be the Krauthammer cover -- a move that President Bush was telegraphing pretty strongly over the last few days by repeatedly mentioning that obtaining White House documents was an important 'red line' he absolutely would not cross," writes Orin Kerr on The Volokh Conspiracy. Professor Bainbridge, on the same page with Kerr on this point, congratulates Krauthammer and enthuses, "let's hope Bush now nominates someone the entire base can support. Mike McConnell comes to mind." (See Kerr's write-up on 10th Circuit Judge McConnell, and check out blogfather Eugene Volokh's enthusiastic rejoinder.)

Norm Pattis continues to believe that Miers was set up to fail in a strategic Supreme Court staffing plan to pave the way for such a second nominee (make that second second nominee). "There was never really any question in my mind that she was offered up as road kill, and I predicted on this site the day she was nominated that she would never be confirmed. See, Harriet Who? Oct. 3, 2005. So, satisfied as I am at having just this once gotten something right, I remain concerned about the meaning of these events," Pattis muses. " Next move by the White House? Appointment of a pedigreed conservative, and then fingerpointing at opponents who are trying to obstruct yet another nominee. Remember: You heard it here first."

Lauren Gelman agrees. "I remember listening to Senator Schumer's reaction to her nomination on NPR. He said 'It could have been worse.' I’m betting now, it will be," she writes. Indeed, professor Spencer Overton of Blackprof wonders whether the left bears responsibility for Miers' departure from the field, writing, "As I wrote here, I believe that Miers would have developed a judicial philosophy that would be better for people of color than the approach of any other possible Bush nominee ("Will Harriet Miers Care About Black People?").  Miers also supported race-conscious measures like the Voting Rights Act.  This withdrawal could be very bad news for people of color.  Did moderates and progressives fail by not actively defending Miers against critics on the extreme right?"

Miers may be gone, but the satire that has surrounded her nomination from the beginning continues. Culture commentator and law prof Althouse wraps it up with When pink turns to black.

For additional reading I recommend:

October 27, 2005 | Permalink | TrackBack

Sentencing reform: Stanford Law Review special

What hath the past 25 years of sentencing reform wrought? Professor Doug Berman (here and here) says the Stanford Law Review's October edition is serious competition for his previous favorite, Columbia Law Review's May issue on sentencing. See his posts for the links.

What do you think? Here's the table of contents.

October 27, 2005 | Permalink | TrackBack

Welcome Cathy Kirkman and SV Media Law Blog!

Please help me welcome the newest member of the blog affiliates, Cathy Kirkman. A partner at Wilson Sonsini Goodrich & Rosati, Kirkman writes the Silicon Valley Media Law Blog.

Kirkman's blogging on media law, content licensing and e-commerce reflects her deep roots in the California hot zone of online media and entertainment, from Hollywood to Palo Alto. At the same time, she does a great job of keeping an eye out for everyday consumers as well as the industry -- witness today's post, "FTC takes action against '100% legal' P2P site" and Wednesday's update on challenges to violent video game laws in California, Michigan and Illinois.

Welcome Cathy!

October 27, 2005 | Permalink | TrackBack

Submit to Blawg Review #30: "Howelloween"

Update: Apologies, this is Blawg Review #30, not #29 as stated earlier. - LS

Get your submissions in now, this woman is busy! Denise Howell, blogger of Bag and Baggage, is writing next Monday's Halloween roundup for Blawg Review, its elusive editor tells me via e-mail:

"Denise is looking forward to reviewing your submissions and
recommendations, and would appreciate it if you'd send her something
good to work with as soon as possible. Tricky, treaty, or one of your
bestest posts of the week. You decide what to put in her Halloween bag
(and baggage).

"Remember, it's a lot easier on our hosts if we all don't wait until
the deadline on Saturday to  e-mail recommendations... following the usual submission guidelines:"

More here.

October 27, 2005 | Permalink | TrackBack

ERISA: 1st Circuit decision "troubling"

Listen up, inside counsel. Marc Mayerson blogs that a recent ruling by the 1st U.S. Circuit Court of Appeals in Federal Ins. Co. v. Raytheon Co.   is "troubling" because:

"... Raytheon court's ruling means that the fiduciary-liability policies never have an obligation to respond to a follow-on ERISA case that is made in any year other than the year that the securities case is brought. In other words, unquestionably had the ERISA case been filed soon after the securities case, the fiduciary-liability carriers that year would have been required to respond. But if the ERISA case is filed the next year (or thereafter), the fiduciary-liability carriers in those years will not need to respond by dint of the generic prior-and-pending exclusion.

"So, where does this leave policyholders, which are increasingly facing tagalong ERISA claims to securities cases filed against their directors and officers (who often are benefit-plan fiduciaries)?"

Read Mayerson's thoughtful answer and context here.

October 27, 2005 | Permalink | TrackBack

Litigators: Hot new survey

Rees Morrison posts a collection of great pieces about Fulbright & Jaworski’s Second Annual Litigation Trends Survey:

October 27, 2005 | Permalink | TrackBack

October 26, 2005

Lawyer video (safe for work, especially if you're at Jenkens & Gilchrist)

There is nothing -- nothing -- I love so much as an old-fashioned, highly embarrassing, amateur home video. 

It's even better when the home-movie-maker adds special effects like slo-mo and unnecessary zooming. The best ones depict classic private moments -- shampooing, potty-training, moving -- to a swelling score of flamboyant movie-music.

Picture me folding laundry or typing at 4 a.m. to Beethoven's Fifth Symphony with a towel-turban on my wet hair. See what I mean? You're laughing at me, not with me. But it's funny.

This preamble is my attempt to explain why I was predisposed to giggle at a promotional video by the Texas law firm Jenkens & Gilchrist that Christine Hurt blogged on The Conglomerate  in August.  In this campy office-home-movie, a bunch of suit-wearing, mostly white, mostly male, mostly sweaty guys charge the office in a client-service lather, yelling excitedly, litigation cases a mano, while their carefully manicured secretaries (yes, all women) cheer them on.

I had never seen this video until today, when John Bringardner of The American Lawyer magazine posted this story about it on (the network where my blog, Legal Blog Watch, appears).  Bringardner's story makes clear, as does my own visit to The Conglomerate blog, that many of their readers aren't laughing, period. While some readers say they don't see any harm in this little flick, many readers wrote in to say they are horrified.

As for me, well, I confess that this sensation of can't-stop-looking-cringeworthy-delight is not typically one with which I associate my place of work. I can't take the movie seriously, but it's also hard to imagine that if my livelihood or life was on the line, I would seek representation by one of these guys (there might be a woman in that mosh pit, but I have to take Bringardner's word for it).

Then again, I haven't met any of these people personally. In an office, I mean, as opposed to a sports bar.

Hurt makes a convincing argument that J&G's video was a recruiting tool. Would you want to work there? You tell me:  Read the blog; see the video.

Update: Um, I guess it could have been worse.  Hat-tip: Althouse.

October 26, 2005 | Permalink | TrackBack

No, I'm not kidding, this is a real site, one recommended by The Wired GC. In his post, "A world view of the bottom line," our GC recommends the site and its CEO as a tool to help you control costs and avoid over lawyering. He writes, "[CEO David] Galbenski has been an innovator in the use of contract legal services and Contract Counsel has been recognized as an Inc. 500 growth company. He is now extending his search for legal solutions worldwide. This makes Mr. Galbenski a person to listen to and a site to watch ..."

I also recommend, as always, this list and guide to outsourced legal services by two other bloggers, Joy London, author of the blog excited utterances and Ron Friedmann, president of Prism Legal Consulting, Inc., and author of the blog Prism Legal.

October 26, 2005 | Permalink | TrackBack

Mass. shield law would protect bloggers as journalists

Bob Ambrogi , who says he helped draft a new Massachusetts shield law to protect journalists from having to cough up their sources, describes the pending legislation in today's post. The bill "defines coverage to include any person who 'engages in the gathering of news or information' and 'has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.'"

October 26, 2005 | Permalink | TrackBack

How-to blog for solos and small firms

Carolyn Elefant has posted this reprise on blogging for solos and small firms, which I strongly recommend:

"In honor of Matt Homann's and Dennis Kennedy's upcoming Blawg Think, I'm reposting a link to the What Blogs Can Do For Solos and Small Firms that I designed and presented along with Jerry Lawson at the Maryland State Bar Association Solo Day Conference back in November 2003.  Though the presentation is coming up on two years, which is at least two generations in Internet time, much of it is still fairly timely.  I've written a couple of other pieces on blogging for solos, It's A Blog World After All (, October 2003) and Get Your Blog Rolling (GP Solo June 2005), but the online presentation is one of my favorites.  And I've never seen anything quite like it anywhere else ..."

More here.

October 26, 2005 | Permalink | TrackBack

"Indict or get off the pot ..."

... writes Norm Pattis in response to news reports that the special prosector assigned to investigate the leak of a CIA agent's identity may file indictments of high-ranking Bush administration staffers as early as today.

I agree. You may have noticed that I haven't been covering this case on Legal Blog Watch. That's because at this point the story of many closed sessions of grand jury testimony by President Bush's deputy chief of staff and top political strategist, Karl Rove, and Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, is one of private information gathering and plenty of cheap public spin. (If you need to catch up on this story -- spin and all -- I recommend Dan Froomkin's latest on No, I don't recommend the Times in this case.)

It's time for the man leading the investigation, Patrick J. Fitzgerald, to put up or shut up. Pattis says it better than I: "Those responsible for this leak make the Watergate bunglers look like Ferris Bueller on his day off," writes Pattis. Pattis suggests, "How about putting politics aside? Ask the grand jury for indictments. Is there probable cause to believe the law was broken by men at or near the pinnacle of power? If so, indict. Let them mount a defense that can be challenged by cross-examination. If not, close the file and move on."


October 26, 2005 | Permalink | TrackBack

October 25, 2005

Spirit of Aloha: BigLaw partner goes solo in the islands

Carolyn Elefant tells the story of attorney Greg Kim, "Making Real Money at a Virtual Firm."

October 25, 2005 | Permalink | TrackBack

"Senator Wrongly Contends Bloggers Aren't Journalists"

J. Craig Williams, a recovering journalist himself, adds to the discussion Lauren Gelman started by voicing his opinion on the Free Flow of Information Act.

October 25, 2005 | Permalink | TrackBack

Enron? Tyco? Never heard of 'em ...

"You would have thought that business ethics would be on the uptick given our recent corporate past," writes Mike Fox. "But unfortunately not the case according to a story on the National Business Ethics Survey ... Want the statistics and the full story? Read Bad News on Business Ethics.

October 25, 2005 | Permalink | TrackBack

Planning a RIF for the holidays?

Geoff Gussis recommends Orrick's legal primer on reductions in force.

October 25, 2005 | Permalink | TrackBack

Defensive IP: Economist survey released

Bill Heinze agrees with  Peter Zura that you should read The Economist's weekly survey on patents and technology.  I think this quote sums up the mixed-up messages the industry is sending to itself, according to the article's author(s):

"Intellectual property has become more central to the industry," says Greg Papadopoulos, chief technology officer of Sun Microsystems. "I don't know if that is a function of a mature industry, or simply a confused one."

October 25, 2005 | Permalink | TrackBack

Are punitive damages a lie?

Norm Pattis thinks so. In Section 1983 Damages -- Part II, Pattis writes about the personal challenges and societal concerns he has experienced when involved with cases that assess damages insurance companies end up paying -- not defendants. "How is anyone ever deterred from misconduct if they never feel the consequences?" he asks. More here.

October 25, 2005 | Permalink | TrackBack

What do national groups for manufacturing, commerce, realtors, corporate counsel and financial services agree on?

Each of these national biz associations recently signed a letter of concern about the Patriot Act in a recent letter sent to Capitol Hill, reports Chip Pitts, a lecturer at Stanford Law School and the chairman of the Bill of Rights Defense Committee of Greater Dallas. (You'll have to register to read his article, but it's free and worth it. Hat-tip for the link: Lauren Gelman).

October 25, 2005 | Permalink | TrackBack

October 24, 2005

The second "WithdrawHarriet" site has launched and there's not an exclamation point in sight ...

Hmmm. Looks like I may be right about "the 'W' in Miers' future." I see, thanks to Howard Bashman, that there are now at least two places online suggesting that White House Counsel Harriet Miers withdraw her nomination to the Supreme Court. And today's Web site makes the blog from last week look like child's play.

On Friday, I pointed to this blog, a negative, anonymous little column notable for its noir palette and Amityvillian tone: Get out, Harriet. However, today's entry -- -- is even more ominous for this administration's nomination. For starters, today's withdrawal site bears the patriotic red, white and blue palette required of any serious political campaign site. Even more ominously in Ms. Miers' case, this one is utterly free of the exclamation points that littered early spoof blogs about her nomination -- not to mention coverage.

But here's the clincher on how much trouble this nomination is in: While the blogs are anonymous, this site's conservative political operators broke ranks and launched their site with the fanfare of a press release, reports The press release points to a site where conservative backers "promise to track this," a growing list of organizations, individuals and media who have either directly called for the withdrawal of Harriet Miers' nomination or expressed deep concern over her nomination." Among those listed as "deeply concerned" are the following senators: Senator Rick Santorum, Sam Brownback, Trent Lott, George Allen, Lindsey Graham, Jeff Sessions, Tom Coburn, David Vitter and John Ensign. I count nine senators there. That's a magical number -- there are currently 55 Republicans in the Senate and 44 Democrats. All it takes is a simple majority to confirm -- or deny -- a candidate.

And there's one last little thing niggling at me about the site. The site's producers made sure Ms. Miers was not alone in the photograph they used--instead she's standing by her boss. Who is standing by her.

What does that mean? We'll have to wait to find out.

October 24, 2005 | Permalink | TrackBack

When a justice's opinion is supremely important

Thanks to Mike Cernovich and Orin Kerr, I have read and now recommend professor Ward Farnsworth's article "Signatures of Ideology: The Case of the Supreme Court's Criminal Docket." After studying non-unanimous decisions by the high court over the past 50 years, Farnsworth wrote the following paragraph:

"[E]very case provokes competition between a Justice's preferences on the one hand and the legal materials on the other. When the legal materials are very strong, they can produce unanimity despite conflicting preferences. But when the legal materials aren't so strong -- when they don't point to a clear answer, and leave room for discretionary judgment -- the competition is won by the Justice’s underlying preferences and views of the world."

I agree with Cernovich -- it's worth your while to read the whole thing. 

October 24, 2005 | Permalink | TrackBack

Polls open: The world's best blogs are...?

You tell me:  Here's your ballot.

As I wrote on Surfette this morning, the online polls are now open in the annual BOBs -- Best of the Blogs competition. I'm on the jury that had the unenviable task of narrowing this list of 2,500+ blogs nominated to this short list of 100-plus.  So you tell me: Of these blogs, which are the world's ...

  • Best blog overall?
  • Best podcast?
  • Best multimedia blog?
  • Best journalistic blog in each of these languages: Arabic, Chinese, English, French, German, Persian, Portuguese, Spanish and Russian?
  • Blog that deserves a special award for their free speech efforts?

Vote here by Nov. 20. Thanks.

October 24, 2005 | Permalink | TrackBack

What's in a mug shot?

Two mug shots. Make that two mug shots of famous guys with brilliant connections and plenty of money. Why, then, is Actor Hugh Grant's mug shot so infamously different from Sen. Tom DeLay's? Don't miss Devon Carbado's take on the issue, over at Blackprof: "What's in a mug shot?"

October 24, 2005 | Permalink | TrackBack

London-bound? Bring your own Wi-Fi

Bruce MacEwen is enjoying his visit across the pond, even though he had to bring his own Wifi. Joy London, however, offers proof that one might be able to leave knowledge management -- and the marketing thereof -- to the locals.

October 24, 2005 | Permalink | TrackBack

October 23, 2005

Blawg Review #29: A two-fer

Why write only Blawg Review #29, when you can also host the two-year anniversary of the Carnival of the Capitalists? That's exactly what elusive "Ed." or Editor of Blawg Review did today. (S)he writes:

"Hosting Carnival of the Capitalists #107 and Blawg Review #29 together on the same weblog this week, we hope to introduce our law blog followers to the always informative and often entertaining CotC, and to introduce business blog readers to a good selection of blawgs, recommended reading for everyone interested in business, economics, law, and money quotes.

"Okay, just show me the money quotes without the blaw blaw blaw ..."

The result is a fantastic roundup of blogs on the law and blogs on the business of law. Here are my favorite outtakes:

In the aptly named essay "Res ipsa loquitur, sed quid in infernos dicet?" Ed. skillfully knits together a vast diaspora of legal blogging from last week, from trademark issues to the Miers nomination, to women at work in the law to what you don't know about what you're telling the government. What's he on about? Check this out:

"Jim Calloway's Law Practice Tips Blog has little yellow dots on it, and now he's worried about your color printer:

'Your Color Printer Turns Government Snitch'

"It sounds bizarre, but did you know that your color printer has likely been modified to provide information about your use of it to law enforcement? Yes, I know. I couldn't believe it either ..."

This piece is, if anything, longer and better. Really too diverse for summary, Ed. touches on everything from the end of Greenspan's reign to the beginning of Google's, from GM's losses to spiritual gains -- even this bit of magic, which Harry Potter readers will appreciate:

"The gurus with the free naming and branding service at Wordlab present Sony's new smart phone:

'Sony Muggles Name Smartphone'

"So, we wondered what moniker the naming wizards at Sony would conjure up for their latest smartphone, code-named Hermione. Something really, really smart, even clever, perhaps, magical. While geeks feverishly waited to get their sweaty little hands on the new phone with its magical powers, all we wanted was the name. Give us the name, dammit ..."

Thanks Ed. For those of you who don't submit your stuff for weekly Blawg Review deadlines, get cracking. Here's how.

October 23, 2005 | Permalink | TrackBack

October 21, 2005

The "W" in Harriet Miers' future

There's a "W" in Harriet Miers' future, I believe, and it has nothing to do with her boss's initials.

"Withdraw! Withdraw! All signs point to: Withdraw!" blogs Ann Althouse this morning, in the first post I read in my alphabetically organized Bloglines newsreader. She's not alone.

I keep seeing that word, withdraw, everywhere I turn, particularly as I seek bloggers and columnists who tend to support the Bush administration and voiced their support for newly minted Chief Justice John Roberts. Charles Krauthammer: "Withdraw." Gordon Smith: "Withdraw Miers? ... I agree." Heck, go and Google's new blogsearch tool and enter the words "Miers" and "withdraw" and look what happens

There's even a blog:

That W-word is the focus of nearly every discussion about her nomination this morning, even by supporters. No wonder the WSJ is using a b-word ("blunder"). Today's buzz in the blawgosphere and beyond is that Bush's nomination of his White House Counsel, Miers, has reached "the tipping point," as The Volokh Conspiracy's Orin Kerr posts here, here and here. Kerr, who sounds as though he is bending over backwards to be fair, writes,

"In a sign that the common wisdom may have shifted -- or, if you prefer, a sign that the market hath spoken -- or, perhaps, a sign of nothing at all -- Tradesports betting on Miers today has the chances of her being confirmed in the 20 percent range, down about 40 points from yesterday ..."

Related link: Read wikipedia's definition of the tipping point.

October 21, 2005 | Permalink | TrackBack

"It's Judith Miller who shouldn't be covered by the media privilege, not bloggers"

As someone who has spent the week trying explain to friends and family why we should all care about the behavior of New York Times reporter Judy Miller and her employers, I am happy to recommend this essay by Lauren Gelman, associate director of Stanford Law School's Center for Internet and Privacy. Gelman, someone who has a security clearance herself, reflects on the definition of journalism, of blogging, on whom federal shield laws should protect and has a terrific list of links on the subject, including Jay Rosen's Pressthink.

Here's the Gelman sentence that says it all [the bold text is her call]:

"In my opinion, it’s journalists like Judith Miller who collaborate with the government under the guise of security clearances who shouldn’t be covered by the media privilege, not journalists who publish using blogging tools ..."

More here.

October 21, 2005 | Permalink | TrackBack

If your firm has a future, it requires a taxonomy

Utter the term, "taxonomy" and watch everyone but the geekiest philologist run from the room. Not to worry -- Joy London understands. She can also explain why it's positively essential for you and your firm to classify your work, even though it means endless bickering in the early phases and oodles of detail work:

"I hear you grumbling already. "Taxonomy, schmaxonomy -- it's not worth the effort." Lest we forget, reliable research shows that "to classify is human." We all do it ..."

The key is to do it right, and London knows. Read her full essay here. Once you're done, check out these fantastic links from Rees Morrison, who proves that you're not alone in your struggle:

This is geeky stuff, but if your firm or legal department is large enough, you're already in the thick of it. Which means you need the right technical lead or chief information officer. This blog isn't about HR or recruiting, but I do recommend you check out Ron Friedmann's post "What's on a CIO's mind?" in which he links to a friend who has interviewed 15 chief information officers.

October 21, 2005 | Permalink | TrackBack

If an insurer demonstrates bad faith, what's the right punitive-to-compensatory damages math?

Marc Mayerson reflects on the  three-to-one ratio the Oregon Court of Appeals found appropriate in Goddard v. Farmer Ins. Co.,

(Ore. Ct. App. Oct. 12, 2005).

October 21, 2005 | Permalink | TrackBack

October 20, 2005

Ambrogi/Williams podcast: Bankruptcy Abuse and Consumer Protection Act of 2005

Coast2coast_4 J. Craig Williams (pictured on the left), writes, "The new Coast to Coast Internet radio program, with my co-host Robert Ambrogi, discusses the new Bankruptcy Abuse and Consumer Protection Act of 2005.  We take up the discussion of this new bankruptcy law that has both the bankruptcy courts and bankruptcy attorneys' offices swamped.  Our special guests are Attorney Henry Sommer, a leading authority on consumer bankruptcy and Editor-in-Chief of Collier on Bankruptcy from Philadelphia and Attorney R. Gibson Pagter, Jr. a bankruptcy lawyer from the firm Pagter and Miller, APLC, of Santa Ana, California.  Join us as we sort through the first major revision in U-S bankruptcy law in a quarter century."

October 20, 2005 | Permalink | TrackBack

Could it be ... Satannnn?!

The best blog-imitation of Dana Carvey's Church Lady I've seen to date, courtesy of Howard Bashman:

""Could it be...Satan!!" The latest appellate iteration of the Procter & Gamble versus Amway spat today produced a lengthy opinion from the U.S. Court of Appeals for the Tenth Circuit. Of course, hockey fans know that Satan can now be found on the New York Islanders." (Click here for Bashman's links.)

October 20, 2005 | Permalink | TrackBack

What are the latest trends in piracy?

Europa_2 Rip-offs of European Union goods have attained such a level that a special EU commission recently created a new customs response to counterfeiting and privacy, reports Bill Heinze. It's doubtful you'll be surprised by which countries are the biggest offenders ...

October 20, 2005 | Permalink | TrackBack

Deafening silence? Conservative women on Miers

Update as of 10.21: Before you do anything, check out the last line of my original post and then read Danielle Crittenden's piece comparing George W. Bush to Bill Clinton in "The Right's Women Problem." For the record, I don't agree with a lot of what Crittenden says or her apparent definition of feminism. That said, I think she nails how Mr. Bush is treating conservative women:

"President Bush has asked us to stand by a woman who is unqualified for the Court because he knows what's in her "heart" -- not in her head. We are asked to stand by her because, simply, she is a woman -- a "pioneer," a "glass-ceiling breaker" -- even while other more qualified women were rejected for the position (and interestingly, rejected by Harriet herself, who headed the "search" committee). That her pioneering had nothing to do with gathering expertise in constitutional law -- well, no biggie ..."

No wonder this conspiracy theory is sucking up Googlejuice today.

---Main post, blogged Thursday, Oct. 20. --

Ever since Laura Bush took to the Today Show to promote Harriet Miers' candidacy nomination for the Supreme Court, I've been craning my neck and straining my mouse-hand to try to find other conservative women who support her -- preferably conservative-y women in the law. But there's a big difference between advocating for Miers and observing the three-ring sideshow of people advocating for her nomination, as Ann Althouse points out today in her post describing "the various sorts of Miers non-critics -- they aren't really supporters, are they?"

No, they're not, as Chicago Sun-Times columnist Lynn Sweet articulates. In today's column, "The deafening silence on Miers," Sweet writes:

"Look who is not talking up Supreme Court nominee Harriet Miers: Some of the most prominent conservative women in the country.  Their silence is telling ..."

Actually, I have to accuse Sweet's editors of dumbing down her column with their headline. Sweet does a thorough job with her reporting, quoting Phyllis Schlafly's "withering" criticism of Miers' service on the Texas Lottery Commission and Jennifer Braceras, a visiting fellow at the conservative Independent Women's Forum,  who calls Miers' nomination "a foul ball." 

Silent? Not.

October 20, 2005 | Permalink | TrackBack

October 19, 2005

Law marketing: 'Will the yellow pages yellow with age?'

If you have a yellow pages ad -- and you probably still do, according to Carolyn Elefant's research -- she wonders whether it's bringing in enough clients to pay for itself.

October 19, 2005 | Permalink | TrackBack

Bob, we Mouseketeers call this the 'Ovitz clause'

Geoff Gussis recommends a link to the Business Law Prof Blog that discusses the employment contract for Bob Iger, Disney's new CEO.

October 19, 2005 | Permalink | TrackBack

Bill Heinze: How you can really help the USPTO

In an uncharacteristically tart response to comments by USPTO Commissioner Jon Dudas on how patent practitioners can improve trade applications, Bill Heinze writes:

"Perhaps we could just start with eliminating restriction, election, and final action practices at the USPTO, before we dismantle the duty of disclosure. While the patent bar can no doubt do more to make claims easier to read, much less examine, I'm not sure that practioners have that much control over the volume of continuing applications and supporting references. Besides, isn't the examination process supposed to get just a little bit easier after the third round?"

October 19, 2005 | Permalink | TrackBack

Stanford Law Center plans forum on citizens, capitalism and doing biz w/China

Lauren Gelman, associate director of Stanford's Center for Internet and Privacy, writes that the center is considering a forum sparked by Yahoo's decision to hand over private e-mails to Chinese authorities in order to keep doing business in China (more detail here and here). Hat-tipping the Financial Times' story today on a letter that Chinese human rights activist Liu Xiaobo sent Yahoo founder Jerry Yang criticizing Yahoo’s collaboration with the Chinese government, Gelman writes:

"I’ve worked with wonderful people at Yahoo to help protect anonymous posters on Yahoo message boards against frivolous suits meant to unmask their identity. How can it turn its head in the name of 'compliance with legal processes' when it comes to their Chinese users?

"Xiaobo wrote that Yahoo has enough market clout not to need to toady to authorities. Even if Yahoo chooses to dispute this (despite the billion dollar deal it just did with Chinese commerce website Alibaba), together, Yahoo and Cisco and Google and Microsoft certainly have enough market clout. Why can’t these companies get together and figure out how to use their combined power to assure that their technologies are not being used to deny their Chinese customers basic human rights?

"We’re trying to put together a forum at Stanford Law School to discuss this. Maybe get some feedback from the companies themselves." More here.

Who's in?

October 19, 2005 | Permalink | TrackBack

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