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December 26, 2005
Blawg Review Awards 2005
Meet Lady Justice or Themis, as portrayed by She-Hulk and Greg Horn, Marvel artiste extraordinaire. She is your host for Blawg Review Awards 2005, which is most appropriate, given her day job and her not-so-mild-mannered alter-ego. If you don't know Jennifer's backstory, then you need to read on. As the inimitable "Ed" of Blawg Review writes,
"Whenever awards are handed out by one's peers, it is often said that it's an honor just to be nominated. Nowhere is that more true, perhaps, than in Blawg Review, where a different host each week recommends the best recent law blog posts for everyone's attention.
"At year end, we take a break from our regular issues of Blawg Review, while Lady Justice passes judgment on law bloggers who, for better or worse, caught her eye as she peeked from underneath her blindfold..." More
Ed goes on to warn that "no amount of influence in the blogosphere, nor any number of friends voting for your law blog, gets you one of these statues" and as a reader, I'm gratified to see many of my faves on the list. Wonder who won best Blawg Review overall? Themis nails it. Best blawg by a firm? By a law prof? Specialty blog? Blawg diva? Best lifetime achievement award in blawgging?
She's good, that She-Hulk. And there are so many more categories. If you accept Ed's challenge and add your own categories and winners, please link them below.
So here's to Blawg Review, the best carnival in existence, for a terrific wrap-up of its first year. And here's to legal justice in 2006. I don't think it will be pretty.
See you on Jan. 2.
Tags: blawg review
December 26, 2005 | Permalink
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December 20, 2005
A break in blawg-watching: Dec. 21 - Jan. 1
Warmest wishes for a safe and Happy New Year, everyone. While I'll be tuning in -- particularly to read the Blawg Review Awards -- I'm taking a brief holiday break from posting. See you Jan. 2.
December 20, 2005 | Permalink
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UPDATED: In 28 years the FISA Court has never turned down a surveillance request
Update to original post: Orin Kerr has typed a voluminous and nuanced Legal Analysis of the NSA Domestic Surveillance Program (he covers the Fourth Amendment, FISA, and Article II). Given the question I raised yesterday, I'm particularly interested in the brief the Bush administration filed in the FISA Court, " The President Has Inherent Authoritv to Conduct Warrantless Electronic Surveillance to Protect National Security from Foreign Threats." Kerr's take? "So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself," Kerr writes. "I have been unable to find any caselaw in support of this argument..." Don't take that quote as indicative of any political slam by Kerr, however. I like how this headline by Anthony of Three Years of Hell to Become the Devil compliments Kerr's post: "When Blogs are Better than Law Reviews..."
Original post: 12.19.05, 12:29 p.m. Time out! Everyone stop tearing their hair for a minute -- and the rest of you, stop shredding the Constitution. Let's examine the facts: According to my favorite consumer-friendly source on the Foreign Intelligence Surveillance Act, the 1978 law developed a quick, easy, sure-fire system of approval for wiretaps:
"The act established the Foreign Intelligence Surveillance Court, known as the FISA Court, to hear the government's case and approve both surveillance and information-sharing requests in secret. Under the law, the chief justice of the Supreme Court is required to appoint seven District Court judges to the FISA Court, which meets once a week in a secure, soundproof room in the Justice Department to hear the government's requests.
"Since 1978, the FISA Court has never rejected a surveillance request. Because of this, some critics have argued that the court merely serves as a rubber stamp for the government. "
That last fact has been missing from many of the news reports I've read. Which leads to my question: Why didn't the Bush administration follow the law already on the books? After all, the Foreign Intelligence Surveillance Act was pretty much guaranteed to work in the president's favor if spying on Americans to maybe gain foreign intelligence was his goal. (Emphasis on maybe: hey, only suspicion is required, not proof.)
Why, then, did Mr. Bush sign 30 permissions to spy upon Americans, the very behavior FISA was enacted to avoid? While I was alive at the time the 1978 act was passed, I was barely politically sentient; Fortunately the Frontline team puts FISA well into historical context:
"[FISA] was enacted as a response to public outrage over the extent of domestic spying during the Kennedy, Johnson and Nixon administrations. While recognizing that intelligence gathering is a legitimate function in the national security interest, Congress passed the law to limit the government's power to break into homes and spy on U.S. citizens."
Over on Blackprof, Spencer Overton provides terrific background in the writings of U.S. Court of Appeals Judge Damon J. Keith, for whom Overton clerked. Judge Keith wrote an opinion upheld by the Supreme Court in U.S. v. Sinclair, 321 F. Supp. 1074, a criminal trial for members of the White Panther Party who were charged with bombing the CIA offices in Ann Arbor, Michigan. Overton writes, "The federal government tapped the phone lines of at least one defendant without obtaining a warrant. Judge Keith decided that President Richard Nixon and Attorney General John Mitchell could not engage in warrantless wiretap surveillance."
Keith's best line? " ... if the President is given power to delegate who shall conduct wiretaps, the question arises whether there is any limit on this power ..."
I also find myself nodding as I read Glenn Greenwald, who writes, "Despite the uproar this weekend among right-wing bloggers who were insisting (and are still insisting) that the Administration's warrantless eavesdropping on American citizens complied with FISA, there is actually no real controversy about this because no reasonable ground exists for disputing that the Administration violated that law -- as even the Administration itself is now acknowledging."
I don't know which is more depressing -- reading Greenwald's excerpts of Secretary of State Condi Rice and Tim Russert on Meet The Press, or reading what Norm Pattis and his commenters are reading. And quoting.
What's next? Ann Althouse thinks the issue is now most appropriately between Congress and the president -- an irony she duly notes, since some Democrats in Congress knew of the administration's decision to spy on Americans without a warrant and didn't do a thing. Althouse writes:
"We have a developing conflict between Congress and the Presidency. Congress can decide if it stands in opposition to incepting these phone calls without a warrant. There is no need for courts to become involved in any asserted separation of powers problem until Congress takes a position. The legal question whether separation of powers has been violated at this point is complicated and interesting, but there is no reason for any court to answer it, when Congress is able to go on record about whether it wants the President to be able to do these things or not.
"So, I look forward to the hearings, which I hope will cover the question of who blew the secret and why."
I'm going to give the final word to First Amendment specialist and attorney Martin Garbus, who wrote an article on this topic for the Huffington Post called "Nixon Loses, Bush Wins." After an authoritative review of FISA's history, Garbus writes:
"What is really happening is that the Bush administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers."
Hmmm. Now I think I know a few more questions I'd like to see the Senate Judiciary Committee ask Sam Alito on Jan. 9.
December 20, 2005 | Permalink
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You may not do business in China--but your product may be
Bill Heinze has provided a little light plane reading for anyone wrangling IP in China: key conclusions from the 2005 Report to Congress on China's Compliance released by the United States Trade Representative.
For anyone eschewing work with China because of piracy concerns, other strategic concerns or even moral reasons, reading the status of intellectual property will be cold comfort. The bottom line seems to be that while a judicial framework is emerging, piracy is rampant. If you create something here, expect it to be sold there, is my takeaway. Here's the first paragraph of Heinze's excerpt:
"Overall, China’s efforts to bring its framework of laws, regulations and implementing rules into compliance with the TRIPS Agreement have been largely satisfactory, although some improvements, particularly in rapidly emerging areas such as Internet copyright protection, are still needed. Enforcement of these measures, however, remained largely ineffective in 2005, giving rise to increasingly strong concerns among U.S. industry. As one trade association representing the information technology sector explained, "[d]espite the Chinese government’s serious effort to begin addressing the piracy of intellectual property, the protection of [intellectual property] remains our industry's chief concern in 2005. Indeed, the appropriation of intellectual property in China has occurred on such a massive scale that it has impacted international prices, disrupted supply chains, changed business models, and probably permanently altered the balance between tangible and intangible values contained within commercial products. U.S. companies have had their [intellectual property] appropriated within China even without engaging with China through exports or investment, and many U.S. companies, particularly in the media and entertainment, see their copied products migrate into mainland markets even while the legitimate product remains barred by regulation."
December 20, 2005 | Permalink
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Time to turn that 12 volume contract into HTML?
Ron Friedmann makes a passionate case for doing so and recommends a couple of companies that perform the service. One even burns CDs for contract users who aren't online. Friedmann writes:
"Dense and deeply cross-referenced contracts create barriers to reading, much less understanding ... [Hyperlinked documents] appear to lower significantly these barriers. This is especially useful for anyone just coming up to speed on a project. For projects in dispute, the side using the tool might gain a significant advantage."
December 20, 2005 | Permalink
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Just in time for Xmas: Labor Dept. takes pity on employers
The Dept. of Labor's Web site upgrade is live, reports Geoff Gussis.
December 20, 2005 | Permalink
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Welcome Future Lawyer
Please help me welcome Future Lawyer blogger Rick Georges to the Law.com network of blogging affiliates. Georges is a solo who somehow finds time to teach, practice, write poetry and still blog about the latest legal tech products (read his bio here). Here's what I mean: Check out Georges' latest on FeedBlitz and a litigation product called Visionary 7 that you can try for free. Welcome!
December 20, 2005 | Permalink
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December 19, 2005
There are statistics. And then there is perspective.
Last Friday, when TypePad went kablooey, my blogging colleague Mike Cernovich wrote a very nice paen to Doug Berman, a legal blogger I greatly respect. Why? Many reasons, not the least of which is Berman's ability to put his own blogging success into perspective. I won't be any less opaque -- quoting from it would steal from your experience. Go read it.
December 19, 2005 | Permalink
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What do you call a million lawyers at the bottom of the ocean?
You'll have to read "FTC takes on cross-border spam," by Cathy Kirkman, for the answer. She begins:
"On Tuesday, December 20th, the FTC is going to announce a cross-border initiative with the Canadian Competition Bureau and several state Attorneys General to combat illegal spam ... The initiative is being launched in conjunction with Alan Curry's Proxypot project ..." More here.
December 19, 2005 | Permalink
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Asbestos coverage cases bubbling up through appellate courts
Marc Mayerson investigates the implications of AW Chesterton Co. v. Massachusetts Insurers Insolvency Fund (Mass. Dec. 12, 2005), in which the Massachusetts Supreme Judicial Court rules on "trigger, nondisclosure and the obligations of [state-sponsored] guaranty funds that back now-insolvent insurance companies."
December 19, 2005 | Permalink
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What legal business will be worth $1 billion by 2015?
Ooooh, big money for inexpensive, fantastic work. That's the future of legal services delivered by offshore companies in India, which is expected to generate $1 billion in revenue by 2015, writes Joy London.
In today's post, London provides readers with an excellent guided tour of a 68-page report by ValueNotes. London describes a number of nuggets from the report, Offshoring Legal Services to India. Here's a taster:
"... although law firm IT directors say they are sending precious little work overseas, it appears that some substantive and administrative legal functions (e.g., document drafting, legal research, document discovery, paralegal and other administrative and secretarial support services) are being outsourced to India. Otherwise, why have we seen such a proliferation of India-based legal outsourcers ..." More
Don't forget that Joy London is an expert in this area; See her list of India-based legal outsourcing providers, compiled with Ron Friedmann. I wonder -- which of the Am Law 200 don't have captive centers for offshoring? And why?
December 19, 2005 | Permalink
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You can lead a lawyer to a high-tech solution, but you cannot make him type
So. If powerful, specialized software is going to save the legal world from Post-it notes and managing partners who won't read e-mail, how quickly should law firms be expected to embrace the solution? Real quick? Sorta quick? Under duress? Ron Friedmann, a former legal CIO who has launched a portal before, asks, "Can anyone share data on lawyer usage after rolling out software available to all lawyers? OK, maybe you don't have data. What percentage use do you think reflects a good result after two years?" He writes:
"I'm not sure if anyone has good comparative data; consider some examples:
- Mandatory systems (e.g., document management) say little because lawyers have no choice.
- Highly specialized practice applications say little because usage is inherently limited.
- Anecdotes suggest that CRM uptake is low, though the intent was for widespread usage.
- I suspect Lexis and Westlaw took over a decade or two to achieve current usage rates."
What do you think? Tell me or tell Friedmann here. Thanks.
December 19, 2005 | Permalink
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Dear Santa, please tell the SEC to take away my SOX. Love, Small Biz
Cross your fingers, all ye smaller entrepreneurs! Geoff Gussis says it could happen, given his read of Business Law Prof Blog.
December 19, 2005 | Permalink
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'Twas the Blawg Review before Christmas
‘Twas the Blawg Review before Christmas,
with no clicking of mouse,
Not a blawger was stirring, not even Althouse.
The banners were placed by the text box with care,
In hopes that ad revenue soon would be there.
"The associates now expect their bonus to thrill,
Their visions of partnership still impel them to bill.
And Harriet in pumps, and Sam in his cap,
Had just settled in for a nomination flap ..."
Give yourself a merry little Christmas break today and read Blawg Review #37 by The Wired GC. It is fantastic! I only wish he'd take on "We Three Kings" and "Dreidel, Dreidel, Dreidel" ...
Are you up to the Blawg Review challenge? Is your stuff? See Blawg Review for more on next week's host and how to submit your blawg for review.
December 19, 2005 | Permalink
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December 17, 2005
Blawg Review #37: What one guy with a bag over his head said to another
In a tell-almost-all interview, t
he anonymous editor of Blawg Review virtually sits down with the anonymous host of Blawg Review #37, which goes live Monday. That's right, the elusive "Ed." (short for "Editor"), of the review introduces as much of The Wired GC (code name "John") as he can get. Despite the fact that both these guys are staunchly committed to being incognito, their Q&A is a revealing read. Enjoy.
You still have a few hours to submit your blawg for this review. More here.
December 17, 2005 | Permalink
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Typepad's missing day: Dec. 16
TGIFridaySaturday.
For those of you who wondered where I was yesterday -- or why you couldn't find any Law.com blawgger with a Typepad account--I recommend you read SixApart's Typepad News blog.
December 17, 2005 | Permalink
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December 15, 2005
Will client conflicts put the ceiling on BigLaw's global expansion?
You have to read this, especially if you're at a BigLaw firm that's turning away little cases in favor of big, fat fish. Bruce MacEwen writes,
"A perennial subject for speculation is whether or how the consolidation trend among BigLaw will end. A primary -- and by sheer headcount perhaps the prevalent -- point of view is that the industrial structure of BigLaw is moving toward a bimodal distribution, with a few dozen (at most) truly Global U.S. and U.K. firms, on whose empires the sun never sets, and at the opposite end of the curve a profusion of boutiques and regional powerhouses. On this view, however, the days of the "midsize, full service" firm are numbered.
"... But as faithful readers may intuit, I have an intellectual aversion to subscribing to the common wisdom without at least tossing a few questions at it. Today my question is, "Won't the multiplication of client conflicts in bigger and bigger firms put a ceiling on size?"
Read the whole thing here.
December 15, 2005 | Permalink
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Best inventors ever?
Bill Heinze has a great roundup of the top 10 inventors in a few categories. Riffing on a USA Today report about the 10 most-prolific living inventors, Heinze also shares:
"Click here for the top 10 African-American inventors from Scholastic. Click here for the 10 most-popular inventions from Mary Bellis. And click here for Dead Famous Inventors from Amazon."
Thanks Bill! Anyone disagree with these lists? And anyone have any intelligence (or guesses) on what the dead inventors were like as clients?
December 15, 2005 | Permalink
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A $63.8M verdict for age discrimination
Whoa. A pilot who used to fly Demi Moore and Bruce Willis cleans up, Mike Fox reports. I'd feel younger already ...
December 15, 2005 | Permalink
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Gee, we have 104 days. Let's change everything!
Bob Ambrogi reports that "[t]he Internal Revenue Service has unveiled the first major redesign of its Web site since 2002 ..."
December 15, 2005 | Permalink
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UPDATED: What if the legal department had strategic value?
The Wired GC is fascinated by this new book by HBS professor and attorney Constance Bagley. Of her latest, titled "Winning Legally: How Managers Can Use the Law to Create Value, Marshal Resources, and Manage Risk," he writes,
"The professor notes that management, up to the CEO, needs to understand the legal dimensions of operating the modern business ... Any effective use of law as a strategic weapon would require alignment between in-house and outside counsel. Doing this effectively under the reigning billable hour model is a perennial challenge for today’s general counsel. Tomorrow, an interview with a leader behind a new initiative that applies technology to this challenge in an innovative and cost-effective manner ..."
Update: In a related post, WGC interviewed with Forrest Morgan, Vice President and General Counsel, the Law Department Purchasing Consortium. You can hear the interview by tuning in to Unplugged #4, “Trusted Neutrality Driving Improved Business Legal Services.”
Rees Morrison has a different take on the law department's role company strategy. In "Is law-department strategic plan an oxymoron?" he writes, "the term 'strategic planning' overly glorifies what law departments can actually start from scratch to transform. The weaker meaning of the term, more like 'thinking about the future,' is not moronic." Read his entire post here.
December 15, 2005 | Permalink
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December 14, 2005
5th Circuit removes "burden" from sexual harassment plaintiffs
This just in from the 5th Circuit, courtesy of Mike Fox:
"Contrary to being an irrelevant distinction, as [employer's] counsel asserts, the requirement that a plaintiff establish that reported abusive conduct be both severe and pervasive in order to be actionable imposes a more stringent burden on the plaintiff than required by law." Harvill v. Westward Communications,LLC (5th Cir. 12/13/05) [pdf].)
Fox has a wry take on the decision. He writes, "Clearing up a question that existed primarily in the hopes of management side employment lawyers practicing in the 5th Circuit, the court yesterday acknowledges that it has sent mixed messages about the correct standard to judge whether sexual harassment is actionable -- is it "severe and pervasive" or is it "severe or pervasive." Noting that Supreme Court decisions are controlling, the circuit aligns itself squarely with the "severe OR pervasive" standard ..."
Bravo, I say! Not that it's going to be easy to prove what is severe OR pervasive. Case en pointe, Fox notes that in this case of Harvill v. Westward, "winning that point was not sufficient to win the case however, as summary judgment was affirmed on other points."
Since it is company holiday party season, I thought I'd recommend this new find: A new site at www.employer-employee.com has a menu page on sexual harassment with lots of helpful links and advice. No matter what side you're on -- watching the company's back or trying to pry someone's claws from your own -- you'll find some good introductory reality checks reading.
December 14, 2005 | Permalink
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Get your elixir of leverage here!
"Next time someone is selling your firm the elixir of leverage, sharpen your pencils," recommends Bruce MacEwen. In a fantastic and lengthy post, he takes on a report that some law firm leaders "identify increasing leverage as a key strategy in their business model."
December 14, 2005 | Permalink
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Countries that need medicines can now turn to EU
In "EU Implementing Compulsory Drug License Regime for Exports," Bill Heinze writes, "The European Union will allow companies in the EU to apply for a license to manufacture, without the authorization of the patent holder, pharmaceutical products for export to countries in need of medicines and facing public health problems. The move follows domestic law changes in Canada, Norway, India and China ..."
December 14, 2005 | Permalink
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UPDATED: Dec. 20: Deadline for LTN awards competition
Update as of 12.15: Monica has extended the deadline to Dec. 20.
Monica Bay, who has been working feverishly on a new design for Law Technology News, reminds us that tomorrow, Dec. 15, is the deadline to enter her magazine's awards competition. Bay writes: "The nomination process is absolutely painless: Just visit here for the nomination forms and Vendor Awards ballots. There are five categories: IT Director of the Year; IT Champion of the Year, and best use of tech in law firms, law depts., and trials. The ballot for the Vendor Awards is also very easy to fill out. As they say, you can't win if you don't enter -- so check it out!"
December 14, 2005 | Permalink
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Rees Morrison: The good and bad of legal journalism
It's rare that Rees Morrison rants. So when he does, I listen. His post today, "A journalist's view ...," is a keeper for anyone writing about the legal world. Here goes:
"Thank goodness we have Corporate Legal Times, Corporate Counselor, Legal Week, GC New York, GC Mid-Atlantic, ACC Docket and all the other publications that pry into corporate legal operations.
"Thank badness, however, that journalists sometimes jump to conclusions about 'law departments,' as if it were possible to detect the spring of change from a swallow's feather. Eager to draw conclusions for the 7,000-plus law departments (in the U.S. alone), journalists eagerly coronate the latest new thing. ..."
Don't miss his definition of "HACKNEYED" in the rest of the piece.
December 14, 2005 | Permalink
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Q: What do you call a state with unconstitutional laws on its books?
Utah.
December 14, 2005 | Permalink
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Texas lawyer saves 90 percent by offshoring
In his post about a Texas lawyer who saved more than $200k by sending work offshore, Ron Friedmann questions a recent Forrester report that 12,000 legal jobs moved offshore last year. Friedmann writes, "[E]xcited Utterances and I maintain list of legal outsourcing companies. It is not comprehensive (for example, we do not include digital dictation), but I still have a hard time understanding where the 12,000 jobs are ..." More here.
December 14, 2005 | Permalink
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December 13, 2005
Society as executioner: Blog reflections on the death of Tookie Williams
Stanley "Tookie" Williams II was executed at 12:01 a.m. this morning in San Quentin prison. Gov. Arnold Schwarzenegger's decision not to grant clemency to Williams -- Crips gang founder, convicted murderer, children's book author -- has lead to impassioned legal blogging online.
At the heart of the issue? Whether capital punishment is the proper direction of this society. While I hope you're reading Howard Bashman's links to news coverage, here are a few essay-posts I recommend -- for both their content and the quality of (most of) their readers' comments:
- Mike Cernovich: Schwarzenegger's Written Reasons for Denying Williams Clemeny. "The debate over Tookie Williams' fate has centered around his failure to accept responsibility for the murders. It seems that accepting responsibility would have taken a sharp arrow from the government's quiver. Indeed, in the memo the Governor (or one of his staff members) writes ..." (Related: L.A. Times story).
- Norm Pattis: Revenge Shared Is Still Just Revenge. "Did Stanley Tookie Williams deserve to die? What a silly question. Doesn't the Good Book say that it is appointed unto men once to die, and after this the judgment? We all die. The question in Mr. Williams' case is whether any public purpose was served by killing him ..."
- Kevin Johnson: Stanley Tookie Williams II. "Should Williams be executed? Should his role in founding the Crips be considered? Or is our justice system so racially poisoned that it is impossible to support the ultimate punishment, especially imposed on a person of color?"
- Ann Althouse: Tookie must die. "Personally, I'm opposed to the death penalty, but I can't understand why this person deserves it less than others who don't get clemency. Fame shouldn't be enough ..."
- Jeanne d'Orleans: Yes, we kill people. "There are far more blatant examples of the horror of capital punishment. Cory Maye remains on death row for what was clearly an act of self-defense. Ruben Cantu, executed a decade ago in Texas, was almost surely innocent. But I have to disagree with Atrios that cases like Maye's make better arguments against the death penalty than Williams' ..."
What are you reading that I should?
December 13, 2005 | Permalink
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You're not ready, California safety commission warns state gov't
The California Seismic Safety Commission has delivered lumps of coal to state government preparedness for a tsunami, reports J. Craig Williams. He summarizes the verdict in three words, "We're not ready."
Sounds like a huge legal issue in the making to me, particularly now that I've read Thomson West's press release, which named Hurricane Katrina before the Supreme Court as two of the top legal issues of the year. Here's an excerpt:
"While the events surrounding Hurricane Katrina are just beginning to make their way into the courts, the disaster and its lasting effect on the Gulf Coast made headlines this year, and the expected legal fallout makes Katrina one of the top legal issues for 2005.
"Although technically not a legal event, I think Hurricane Katrina and the other natural disasters of 2005 will have continuing legal fallout. Contracts were broken, employment was lost, leases were abandoned, and all these issues may result in significant litigation for some time," said Dee Pridgen, author of Consumer Credit and the Law, 2006 ed. and Consumer Protection and the Law, 2005 ed. "Also, in the rebuilding, there may be issues regarding home repair scams, foreclosure scams and other overreaching of consumers."
All I have to say to my co-Californians is:
- If you're lucky, it's only 72 hours; and
- If you can't bring yourself to take the time to click through on the link in the previous sentence, then (a) may you live the life of a hermit in which no one else depends upon you, and (b) at the very least, put shoes, water and food in your car and come up with a plan for your kid(s) if they don't go to school within walking distance of home.
December 13, 2005 | Permalink
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Have you contributed to Wikilaw yet?
Just in case you haven't heard of this exciting site, check out Geoff Gussis on this "open-content legal resource."
December 13, 2005 | Permalink
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Is religious discrimination "The Story That Still Isn't"?
The data say so, if you examine the number of cases filed alleging religious discrimination at work, says Mike Fox. In "Religious Discrimination: The Story That Still Isn't," he notes that the numbers fly in the face of many predictions, including his own. While Fox looks to the future (specifically, the Workplace Religious Freedom Act), I find myself thinking a lot this season about how to grapple with religious discrimination of another kind ...
December 13, 2005 | Permalink
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I hear William Hurt plays Larry Lessig ...
Just kidding. But I'm still going to try to find a way to see "What Do You Think?" The new documentary on intellectual property and file-sharing is produced by the National CyberEducation Project as part of their Copyright Roadshow. Hat-tip to Bill Heinze, who links the roadshow and its fantastic starter list of questions. The first one is, "Question 1: Do we need record companies at all in the Internet age?"
More here.
December 13, 2005 | Permalink
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For five bucks you can do good, eat better, sleep like an angel
How is it possible that $5 could net you gourmet chocolates? Homemade apple butter? A premeasured Persian feast for you to serve at home? 
Here's how: Join Chez Pim's Menu for Hope II and buy a $5 raffle ticket to help people still suffering from the Pakistan earthquake that killed 80,000 and left 3.5 million homeless this fall.
Meet Pim, a pretty famous and oft-cited food blogger who knows the way to your wallet is right through your tummy, courtesy of her tangy wit:
"[W]hat fun would it be just to come begging you for some dough, even if it is for a great cause? So, in order not to turn our otherwise fun blogs into the PBS pledge break bore, we've put together a huge list of cool, fun and personal gifts --like only we could -- to entice you to donate. Each of those gifts is offered as a virtual raffle prize. All you have to do is donate $5 and you will be eligible for the raffle drawing for a gift of your choice ..."
December 13, 2005 | Permalink
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December 12, 2005
'Gilmore v. Gonzales': Of "secret laws" and showing your ID at the airport
I'm now so paranoid about losing my ID on airplane trips that carrying my driver's license just doesn't cut it. I mean, what if I lost it? Hey, I've lost worse in World's Biggest Purse.
So I bring my passport. And a copy of my passport. And, just to be safe, a copy of my driver's license. But here's the part that makes me realize I've completely lost it: The copies are in plastic baggies. Separate ones. Just in case, somehow, a pool of water materializes in any airport I might visit, and said documents manage to escape World's Biggest Purse.
Perhaps this is why I am so impressed by John Gilmore's decision to put his many millions of dollars behind the question "why do we have to show ID?" Gilmore is now in his third year of litigating the federal requirement that commercial airplane travelers show ID before boarding planes (see Justin Scheck's story). Gilmore argues that this law is an invasion of his privacy. At the end of last week, Gilmore v. Gonzales made its latest court appearance, this time in the 9th U.S. Circuit Court of Appeals. His lawyers "asked the judges to remand the case to the trial court, where a record could be established for the 9th Circuit to review," and plans to challenge all transportation-related ID checks if they do, Scheck writes. The government, "on the other hand, asked for a complete dismissal -- or for the 9th Circuit to address it directly," Scheck adds.
There's been lots of blawgging fallout about the hearing, and not just about the Dr. Seuss socks Scheck saw peeking out from under Gilmore's Birkenstocks. The Washington Monthly's Kevin Drumm wrote on Saturday:
"John Gilmore is suing the government because he doesn't think he should be required to show ID before boarding a commercial flight. I think this is stupid and he deserves to be thrown out of court.
"At least, that's what I'd think if it weren't for this:
'The Bush administration ... claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it. ... The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.
"WTF? Call me naive, but I've never heard of a secret law. I've heard of secret courts and secret evidence -- which are bad enough already -- but not secret laws. When did this happen?" Much more here. (For Gilmore's account, read the official Web site, where Gilmore or one of his team describes the original incident at San Francisco International Airport.)
I don't think it's as bad as you think it is, responds Volokh Conspirator Orin Kerr to Drum. Kerr takes on the case in a lengthy post, from which I'll excerpt this nugget:
"I think reasonable people can disagree on whether TSA's practices are a big deal. Some will find them deeply troublesome, and others won't.
"At the same time, I think it's important to recognize that this dispute appears to be significantly narrower than Kevin's post suggests. First, Congress isn't passing any secret laws; the undisclosed authority is a regulation, not a statute, and the TSA's requirement is widely known. Second, no one is being arrested; as I understand it, the issue is only who can be let on an airplane.
"Finally, the court isn't being called on to interpret a law it has never seen. DOJ filed a motion attempting file [to] a version of its brief under seal ... "
What do you think? Does it make you feel better to show your ID? Is it an invasion of your privacy? Both? I welcome your thoughts. I also recommend the comments on Drumm's and Volokh's blogs.
December 12, 2005 | Permalink
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Eat his dust: Blawg Review #36
Auto-crossing the blawgosphere with enough speed and satire to smoke many a blawg entry today is legal blogger E.L. Eversman. His AutoMuse hosts Blawg Review #36 today and it's cherry. I'm not quoting him extensively -- you have to read it for yourself -- but I'll show you some of his (sub)headlines:
- Going to law school: On the highway to hell?
- Climb into the Minivan, Kids, We're going to the Bar Exam!
- Lawsuits: CEOnistas -- Is anyone taking their BMWs and Hummers away?
Do you want to submit your blog for Blawg Review? Or would you like to write one? Visit this site for guidance.
December 12, 2005 | Permalink
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A primer on captive insurance and recovery
More required reading in any syllabus on the legal aspects of insurance, courtesy of Marc Mayerson: Read A Slip 'Twixt the Cup and the Lip: Captive Insurers and Reinsurance Recovery.
December 12, 2005 | Permalink
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How to work part-time -- a holiday shout-out to parents
As someone who has been juggling kid(s) and work for nine years now, I think Carolyn Elefant offers terrific advice in her post, Yes, You Can Be A Part Time Shingler. She's pretty frank about the part-time work realities for full-time parents:
"[I]t doesn't always seem part time. Before my girls were in school full time and I worked a reduced schedule, I often spent several hours putting in time on weekends or evenings to make a deadline because I was watching my daughters during the day. My husband and parents wondered why I was always working, but in reality, I was merely just making up time that I'd lost during the week.
"Many times, I was also frustrated by the limitations of part-time practice. Sometimes, I'd have to miss an interesting networking event because I didn't have childcare at a particular time to watch my daughters or turn down work because it was too erratic.
"But to my mind, while succeeding at a part-time practice may be a bit more of challenge, the benefits are well-worth the extra effort."
Agreed! Happy third blog-anniversary, Carolyn, from just one of the readers who agrees with Objective Justice when he writes, "The longer I read Carolyn Elefant's stuff the better I like her."
Here's to many more years of good advice.
December 12, 2005 | Permalink
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Althouse: Why cameras belong in the Supreme Court
Ann Althouse wrote this terrific post Saturday on why she has changed her mind about Sen. Arlen Specter's pending legislation to force the camera eye into the nation's high court. In a long post where she links Dahlia Lithwick's description of John Roberts and confesses she herself wants to watch the oral arguments on television, Althouse adds:
"[T]he cameras would expose the Justices who cling to their seats despite declining ability. It is true that the journalists in the courtroom might tell us if a Justice no longer manages to sit upright and look alert. But the regular gaze of the television cameras would create a permanent but subtle pressure on the Justices to think realistically about whether they still belong on the Court. Self-interest would motivate them to step down gracefully and not cling too long to the position of power the Constitution entitles them to. I think this new pressure would serve the public interest. It would institute a valuable check on the life tenure provision, which has, in modern times, poured too much power into the individuals who occupy the Court."
What do you think? Would the pressure help the courts? Would it improve the quality of court-centric journalism? My inclination is yes.
December 12, 2005 | Permalink
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"Any litigation is like a fire which burns despite innocence." (Chinese proverb)
Don't miss Bill Heinze's terrific, Confucian roundup, Literary Insights on Chinese I/P Enforcement. For more, Heinze has a recommendation: "See Dr. Klaus Hinkelmann's presentation on 'Adapting enforcement strategies to local cultures' at the WIPO program on Far East Meets West."
December 12, 2005 | Permalink
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Rent-a-GC
Now this is music to any start-up's ears: Outsourcing executive legal help just got easier! The Wired GC links and describes four different companies that offer general counsel on a per-diem or even project basis. The GC writes,
"Many traditionally oriented law firms also offer this sort of service -- but not all are staffed with former GCs who have the experience of providing services exclusively outside the billable hour model.
"Lawyers I know who provide this sort of service (on a per-day or a flat-monthly-fee basis) say that it encourages their clients to use them -- and not cringe that each phone call will be rounded to the quarter hour. Clients like it because it offers some predictability for legal costs. Things like litigation or one-off transactions are usually excluded from these arrangements.
"In the long run, I expect these service offerings to increase. It's also a positive sign that for some ex-GCs there is life after being in-house that can offer some of the same work experience that lured them inside in the first place."
Really exciting stuff. As someone who has worked in Silicon Valley start-ups, I definitely see a market for this. The key is finding someone with the right industry expertise, and a long-term enthusiasm for parachuting in and out of projects. I'd consider it. Would you?
December 12, 2005 | Permalink
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Will your Chief Legal Officer have a new boss soon?
Chief legal officers may have new bosses soon, warns Rees Morrison. He tells the story of a U.K.-based finance company that hired a Chief Risk Officer. Now the following departments report to the CRO: legal, audit, risk and compliance.
Hmmm, I thought when I read this. Can a single financial services company, especially one with the audacity to name itself "Egg," really drive such a change?
Morrison anticipated this question. Out of the files he pulls a spring 2005 survey that says 45 percent of responding companies had hired a CRO. He asks, "Will this be the fate of law departments over time; or, stated differently, are they at risk of reporting to a CRO?"
I think it's key to note that the majority of respondents to this survey are in the financial services sector. Given the data above and a little complicating factor known as Sarbanes-Oxley, I would think that chief legal officers would be thrilled to hand off some blame, er, credit to a CRO.
December 12, 2005 | Permalink
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December 09, 2005
Mommy, is Mickey really Pooh's friend?
Cathy Kirkman brings a mother's perspective and an IP attorney's insight to a long and litigious tale starring Winnie the Pooh, his creator, Stephen Silverman Inc. and Walt Disney Co. There's trouble afoot in the hundred-acre woods, she writes, and
""[U]nless the U.S. Supreme Court accepts an appeal of the case, SSI's royalty suit against Disney will proceed in the new year ... For those of you who, like myself, spend time watching Pooh videos with little people, you can now use that time to think through these fascinating copyright issues..."
As the story unfolds, it becomes clear (to this reader anyway), that author A. A. Milne in 1930 began doing everything he could to leverage the Pooh franchise for his family, including his son, one Christopher Robin Milne. That creative foundation is now groaning until the heavy weight of a copyright smack-down and transfer provisions arcana, with various players crowded around Pooh's honey pot. In "9th Circuit rules in Winnie-the-Pooh case" Kirkman notes, "Clearly Disney is opportunistically doing whatever it takes to preserve its financial interest in the Pooh franchise ..."
(That's not the only thing Disney has changed about the Pooh franchise. As The Huffington Post hoots in a link to the Times of London story, "Disney Gives Christopher Robin A Sex Change... ")
I wonder how many hundreds of millions of dollars in billings and how many law school case studies this copyright struggle has generated? More importantly, what and whom are we parents supporting by buying all those Pooh and Tigger Halloween costumes that were waddling around my neighborhood this Halloween?
Hopefully--whether we read or watch Milne's tales--we're supporting a sweet and anti-materialistic series of stories about how to experience the fun of childhood while learning what it's like to have lots of different friends--bouncy ones, friendly ones, cranky ones, orange ones as well as pink ones, and mopey ones.
If we lose sight of that, we grownups may as well turn Pooh into Greg the Bunny and keep him for ourselves.
December 9, 2005 | Permalink
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The 1st Amendment , the Brown Act and why LAPD's "Impact" can't hold closed meetings
"The secret police are secret no more," writes J. Craig Williams, who credits First Amendment activist Richard McKee with a ruling by the 2nd Appellate District, Division Two of the California Court of Appeal that the Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force cannot hold closed meetings.
"Apparently L.A. Impact (as the Task Force is more commonly known) according to the court opinion, has arrested 3,600 people, seized 123,000 pounds of cocaine with a street value of $5 billion, confiscated $80 million in cash and one Lear Jet," writes Williams. "That's an awful lot of work for one agency that is not accountable to the general public."
Make that was. More here.
December 9, 2005 | Permalink
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Carolyn Elefant: "Don't be an empty suit."
My Shingle's blogger writes about the life of Amie Ely, how her father's murder inspired her career in the law, and what Ely now doesn't want to do with her life. Carolyn Elefant thinks she's got it right.
December 9, 2005 | Permalink
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Offshoring is "moving up the food chain"
Blogger Ron Friedmann recommends Knight Ridder reporter Kevin Hall's article, "More complex jobs moving offshore." Friedmann, who was interviewed for the piece, writes "Law firms -- and clients -- should take note that cost is not the only reason to send work overseas. The article reports on a survey by the American Institute of Architects. It found that among architecture firms that sent work offshore, "a quarter cited lower costs, another quarter cited faster production and 50 percent … said offshoring helped them cover peak demand, allowing round-the-clock work on projects ..." More data and links here.
December 9, 2005 | Permalink
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Cars, the law and Blawg Review #36
Next Monday's host of Blawg Review is the blogger behind AutoMuse, In his day job, E.L. Eversman is chief counsel for Vehicle Information Services Inc. Blawg Review's editor points out in an e-mail to me that "Forbes magazine ... recognized AutoMuse in the recent Forbes Best of the Web blog awards in the category of Automobile blogs. Earlier this year, we featured a powerblog review [here]of AutoMuse on the Blawg Review Web site."
So, race fans, here's how to get your submissions in. I just hope Mr. Eversman will tell us: What does he drive?
December 9, 2005 | Permalink
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Listener's guide to blawg-casts
In "2005: Year of the Podcast," Bob Ambrogi lists his top ten favorite legal bloggers who record and publish online audiocasts or "podcasts." He doesn't stop with ten. Ambrogi provides an extended listener's guide and some podcasting how-tos for beginning listeners. For anyone who doubts the headline of Ambrogi's article in Legal Technology (a Law.com pub), he points out today that "podcast" is the word of the year according to the New Oxford American Dictionary.
He's right to put his own audio show with co-host J. Craig Williams, Coast To Coast, on the list. See if you agree: Listen to this week's show on military recruiting at law schools, where they explore the Rumsfeld v. FAIR case argued before the Supreme Court this week. I'd also add a relatively new blawgcast to his list, The Wired GC's Unplugged.
Here's my question for you: Do you make the time to listen to podcasts and, if so, why?
December 9, 2005 | Permalink
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December 08, 2005
Is stare decisis Latin for "we do what we want"?
Howard Bashman has published a Congressional Research Service report on "The Supreme Court’s Overruling of Constitutional Precedent: An Overview" [PDF]. It's a must-read for anyone following the Supreme Court nominations. Here's the opener:
"As a general rule, the Supreme Court adheres to precedent, citing the doctrine of stare decisis ("to stand by a decision"). The general rule of stare decisis is not an absolute rule, however, and the Court recognizes the need on occasion to correct what are perceived as erroneous decisions or to adapt decisions to changed circumstances. In deciding whether to overrule precedent the Court takes a variety of approaches and applies a number of different standards, many of them quite general and flexible in application. As a result, the law of stare decisis in constitutional decision making can be considered amorphous and manipulable, and it is difficult to predict when the Court will rely on stare decisis and when it will depart from it. This report cites instances in which the Court has overruled precedent as well as instances in which it has declined to do so, and sets forth the rationales that the Court has employed."
The first application author George Costello uses? None other than Roe v. Wade.
Hat-tip to Mike Cernovich, who writes, "The report's conclusion? The Supreme Court overrules precedent whenever -- and applying whatever standard -- it wants. No surprises there, but it's always nice to have scholarship confirm 'common sense.' "
December 8, 2005 | Permalink
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9th Circuit's new rules for consent decrees
J. Craig Williams writes that the 9th Circuit's Wednesday opinion in U.S. v. Asarco creates two additional things to overcome before a consent decree can be modified. Here's his primer:
"Previously, we had just two hurdles: (1) show a significant changes in the factual conditions or in the law warranting modification; and, (2) whether the proposed modification is suitably tailored to resolve the problems created by the changed factual or legal conditions. Those two hurdles are not news (that's been the law since the 1992 Supreme Court case of Rufo v. Inmates of Suffolk County).
"The addition of a third and fourth hurdle, however, is the news from Asarco. Now, the party trying to modify the Consent Decree must also show that: (3) the changed conditions make compliance with the consent decree more onerous, unworkable or detrimental to the public interest; and, (4) the changed conditions were not anticipated at the time the Consent Decree was signed. To make matters worse, the Court described these last two hurdles as 'heavy burdens.' But there's hope: if the changed conditions were anticipated, then the private party can still obtain a modification of the Consent Decree if the party can show a reasonable effort to comply with the Decree. "
December 8, 2005 | Permalink
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