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June 30, 2006

U.K. Probes Space Tourism Laws

The United Kingdom is getting ready to launch new laws governing space tourism, reports blogger Jesse Londin at Space Law Probe. Picking up on a report by Flight International, Londin explains that if a U.K. space-tourism company -- such as, say, Richard Branson's Virgin Galactic -- is going to launch from U.S. spaceports, international space treaties would require it to have the approval of the British National Space Centre. Londin, citing the Flight International report, continues:

"To formulate a regime for licensing UK companies' space tourism activities, ... BNSC will be looking at proposals over the next few months and asking 'stakeholders, which could be space law firms, insurance companies and relevant government departments, their views on space tourism for the manned suborbital flight licensing system it thinks it will need under the UK's Outer Space Act, which became law in 1986.'"

Londin goes on to suggest that the space business could be a good one for the U.K. She notes that U.K. Science Minister Lord Sainsbury, in a speech this month at the Parliamentary Space Committee Summer Reception, reported that the U.K.'s share over the worldwide space market was 7.3 percent. "These figures demonstrate very clearly that the case for space is an excellent one," he said.

June 30, 2006 | Permalink | Comments (2)

Barbecue Guide to the 'Hamdan' Case

Not one to mince words, Norm Pattis at Crime & Federalism says that yesterday's ruling in Hamdan v. Rumsfeld "has the potential to go down in history as one of the most significant Supreme Court decisions of the new century." Such precedential pronouncements about the case are in abundance today. As Carolyn Elefant noted here yesterday, online media and the blogosphere are awash in reviews and summaries of the case.

But what about you? With it being the barbeque-laden 4th of July weekend, and you being a lawyer, are you prepared with pithy comments about the case to impress your friends and relatives? Lucky for you, Andrew Cohen at Bench Conference has just what you need, "a 'talking points' memo about the case that you can use at cocktail parties and barbeques this weekend." Here, for example, is Cohen's talking point No. 9:

"How about the Chief Justice? Now he has to spend all summer thinking about how five of his colleagues on the bench think he got the most important case of his life, so far anyway, completely wrong. Yes, it was John G. Roberts, Jr.'s appeals court ruling, announced last July when he still was on the D.C. Circuit Court of Appeals, that the Court's majority eviscerated Thursday."

Now, as you sit this weekend on the bench of the burger court, you can relax, confident with canned beverage in one hand and canned comments in the other.

June 30, 2006 | Permalink | Comments (2)

Sad Case of a Troubled Judge

A jury yesterday convicted the former Oklahoma judge who may forever be known as "the penis-pump judge." The trial was characterized by awkward moments and courtroom giggles and elicited wink-of-the-eye headlines such as Penis Pump Judge Faces Stiff Sentence. Slate even devoted an article to answering the question, Do Penis Pumps Work?

But as we were elbowing each other in the ribs, we seemed to overlook the obvious tragedy and pain of this case. Throughout, Judge Donald M. Thompson maintained his innocence, insisting that the device was a prank gift he never used. The testimony strongly suggested otherwise, revealing a troubled man who should have found help before throwing away his career and his reputation. And what of those who witnessed his behavior? Lisa Foster, the former court reporter who was a key witness in the trial, was reported to have been in tears as she testified that Thompson's actions shocked and scared her.

This was the case of an emotionally damaged man causing emotional damage to others. Such cases are not uncommon, unfortunately. But given that the man at the center of this case was a judge, we as lawyers should be asking how it happened and how it can be prevented elsewhere. How did so troubled a man continue to serve on the bench without detection or intervention? Should the justice system do more to weed out troubled judges? When we're all done guffawing, let's consider what should be done.

June 30, 2006 | Permalink | Comments (3)

Don'tSueHerBoy

The Pittsburgh lawyer who says he was defamed by the Miami-based Web site Don'tDateHimGirl.com has followed through on his promise of a lawsuit. Lawyer Todd J. Hollis filed his lawsuit yesterday in Pennsylvania's Allegheny County Common Pleas Court against Tasha C. Joseph, owner and operator of the site, the Pittsburgh Post-Gazette reports.

As Legal Blog Watch reported earlier this month, three women posted uncomplimentary references about Hollis on Don'tDateHimGirl.com. Hollis says the messages are false and defamatory in that they characterize him as a shabbily dressed and diseased womanizer. According to the Post-Gazette report:

"The lawsuit filed on behalf of Mr. Hollis, 38, of East Liberty, said Ms. Joseph has 'conspired with disingenuous people whose only agenda is to attack the character of those individuals who have been identified on her site.' The suit says there are no protocols to ensure statements on the site are valid or truthful. Mr. Hollis, who has practiced criminal law for 12 years, claims statements posted on the site, which appear to be by different people, have affected his practice and family life."

Lida Rodriguez-Taseff, one of the lawyers representing Joseph, told the Post-Gazette that her client is protected by the federal Communications Decency Act, which immunizes Web hosts against liability for messages posted by others.

Hollis is the first allegedly slandered suitor to take Don'tDateHimGirl to court, but others may be considering similar moves, judging by the "legal action" site ClassAction-DontDateHimGirl.com.

June 30, 2006 | Permalink | Comments (61)

June 29, 2006

Hamdan: The Court's Big Decision Today

Earlier today, the Supreme Court announced its long-awaited decision in U.S. v. Hamdan, which addressed the legality of the Bush admistration's policy of ordering military war crimes trials for Guantanamo Bay detainees. As summarized by the SCOTUS Blog, in a 5-3 the Court held that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva conventions. But several of the justices suggested that Bush could return to Congress to seek the authorization that the Court found lacking. Other notable tidbits from the case: Justice Thomas, who dissented, read his opinion from the bench, the first time he's done so in 15 years on the court. And Justice Roberts recused himself; it was his D.C. Circuit ruling in Hamdan that the Supreme Court reversed.

Reviews and summaries of the decision are coming in all over the online media and blogosphere. Summaries of the ruling can be found here (Gina Holland, Associated Press) and here (John O'Neil and Scott Shane at New York Times). Blogger Orin Kerr remarks preliminarily that Justice Kennedy's concurrence reflects a belief that "Congress' views are supreme," and Peter Lattman at WSJ Law Blog profiles Neal Kaytal, the Georgetown Law professor whose argument for Hamdan was his maiden voyage at the Supreme Court. SCOTUS blog features guest commentary from Richard Samp of the Washington Legal Foundation, who begins his post with his opinion that "I’d be surprised if any of the holdings in today’s Hamdan decision end up having large practical significance." And also at SCOTUS is this post from Lyle Deniston, who writes that Hamdan is notable for what it did not decide, including the question of whether or not there actually exists a "presidential 'inherent power' of the kind that President Bush claims under his commander-in-chief powers."

The Hamdan discussion continues in the blogosphere. For more related posts, just visit this Technorati link.

June 29, 2006 | Permalink | Comments (0)

Competitors Sue Craigslist for Discrimination

Craigslist, an online classified ad Web site that doesn't charge to place or post ads, defied conventional wisdom that advertising needs to cost money. But now, per this here post by Craig Williams of May It Please the Court, looks like Craigslist is breaking new ground for another reason: it's been sued for violations of housing discrimination laws, not by victims of discrimination or special-interest groups but by its "for fee" competitors: newspapers.

Williams' post explains that newspapers are required to comply with U.S. Department of Housing and Urban Development requirements on nondiscriminatory housing ads, whereas Craigslist does not. Forcing Craigslist to monitor ads to ensure compliance with housing law and other nondiscrimination laws would increase costs for Craigslist and, perhaps, force it to charge for postig ads. Williams points out that Craigslist should not be treated the same as newspapers because "ads on CraigsList are free and posted by individuals. Ads in newspapers cost, and they are posted by newspaper staff." But ultimately, Judge Amy St. Eve in Chicago will decide if that distinction will save Craigslist. In addition, Craigslist has friends in high places, like Google, AOL and eBay, which filed an amicus curiae brief, arguing that Craigslist is protected from liability for HUD violations in the same way the phone companies and Internet providers are protected from liability for violations of the law occurring over their wires.

Williams comments:

It didn't help that CraigsList has taken a lot of housing ads away from newspapers, which may be the real genesis for the lawsuit. Especially when the ads are free. That's a lot of lost revenue, and the HUD claim is a creative attempt to stopgap that lost revenue stream.

I'd be interested in knowing, as a practical matter, how many of Craigslist's ads actually violate housing discrimination laws. Do newspapers have standing to bring these claims at all? They may argue they're disadvantaged by compliance with discrimination laws, but they're not the parties that the laws were intended to protect. Seems that the court should at least wait until a truly injured party complains to rule on these issues.

June 29, 2006 | Permalink | Comments (1)

Most Law Firm Marketing Doesn't Work

In this post at the Professional Services Marketing Blog, Larry Bodine takes a look at the expenses that constitute a marketing budget, including items like marketing department compensation, tickets, advertising, sponsorhip of civic events, Web site upkeep and others. But while that's where the firms are spending money, Bodine notes:

Not one of [these] activities showed up in our research among the highest-ranked “best results” marketing and business development initiatives. Most of them could be measured to demonstrate return-on-investment ("ROI") or very tangible outcomes.

The top three marketing losers according to Bodine's marketing report (the full version can only be accessed for a fee) are:

forecasting (i.e., envisioning future economic and business scenarios), analyzing market share and alumni outreach programs. Marketers should ask themselves if those programs are worth the effort, and seek to improve their effectiveness if they are not.

Do you agree that these measures don't work? What types of marketing brings your firm its greatest ROI (return on investment)? Please comment and let me know.

June 29, 2006 | Permalink | Comments (0)

More Technology Doesn't Mean Better Research

Back when I was in law school, we accessed LEXIS and Westlaw on a stand-alone monitor; the Internet still wasn't available for public consumption. Today, law students have LEXIS and Westlaw available at their fingertips 24/7, as well as all sorts of research capabilities on the Internet. And yet, why is it that today's students apparently aren't any better at researching than their predecessors?

Tricia Kasting takes a crack at answering that question in her article Students Lack Legal Research and Information Literacy, Law.com (6/28/06). Kasting writes:

Print sources gave us defined resources and an existing intellectual framework. Electronic methods facilitate the finding and using of information. Both have their strengths and weaknesses. We teach students print and electronic resources, but their technical computer proficiency -- Internet and then Lexis and Westlaw -- makes these the preferred methods. Finding information is easy -- too easy. Why spend time with the books, when online produces usable results and is familiar?

My simple contention is that current law students have good information technology skills, but are deficient in information literacy skills. Many students seem to equate computer skills with search skills: I am computer literate equals I have good research skills. Technical competence with a program or search engine is confused with the analytic skill to use the program effectively and efficiently. For example, students learn how to construct a search query but look for New York state case law in the Allstates database. It works, but is not efficient. Secondary materials -- other than law reviews -- are not considered. Document retrieval, Shepard's and KeyCite are specific functions easy to identify and, hence, use. They engage in discrete information seeking acts, but do not identify the specific question to be answered; if this question relates to the issue; and how the issue relates to the legal concept. They have identifiable technical skills, but are not information literate.

I've seen these deficiencies in many law clerks whom I've hired in recent years. Though I'll often advise them to take some time reading a law review article or treatise to get a sense of the broader research questions, they often hop right to compiling cases.

Kasting seeks advice on how to refocus the teaching of legal research to get students to focus more on analysis and how to attack a question rather than bulk gathering of information. I don't have any suggestions, but I hope that law schools address this problem soon.

June 29, 2006 | Permalink | Comments (3)

June 28, 2006

The Alito Effect

The Supreme Court issued three opinions today, upholding a Republican-engineered Congressional redistricting plan in Texas (League of United Latin American Citizens v. Perry), upholding a Pennsylvania ban on newspapers and magazines for prison inmates (Beard v. Banks) and ruling that states may bar foreign nationals from raising treaty rights not raised at trial (Sanchez-Llamas v. Oregon). Lyle Denniston has more at SCOTUSblog.

The Pennsylvania case is one in which Justice Alito, as a member of the 3rd U.S. Circuit Court of Appeals, was the lone dissenter voting to uphold the ban. He did not participate in today's ruling. Yesterday, Tom Goldstein posted his thoughts on the effect of Alito on the Court, noting:

"This timing of Justice O'Connor's retirement provides an unusual opportunity to isolate the effect of the appointment of Justice Alito on the Court's jurisprudence."

For the three cases reargued after O'Connor's departure, Goldstein offers "a very educated guess" on whether Alito's appointment changed their outcomes. In two of the three, he says, the answer is yes.

In Garcetti v. Ceballos, Goldstein notes that Justice Souter ended up writing no majority opinions from the Court's October sitting, while Justice Kennedy ended up writing two, of which Garcetti was one.

"Because there were only 8 cases argued in October, no Justice should have ended up writing the opinions for the Court in two cases. ... So it is fair to conclude that Justice Souter had the majority before Justice O'Connor's retirement, then lost it when Justice Alito joined the Court."

Hudson v. Michigan suggests a similar scenario, Goldstein writes. While the eventual opinion was authored by Justice Scalia and the principal dissent was by Justice Breyer, the fact that Scalia ended up with two opinions from the January sitting and Breyer had none means "it is fair to conclude that Justice Breyer had the majority before Justice O'Connor's retirement, then lost it when Justice Alito joined the Court."

In the third reargument, Kansas v. Marsh, O'Connor's retirement appears not to have made a difference, Goldstein says.

"Justice Thomas ended up with no opinion from the December sitting, indicating that Marsh was the opinion he would have authored for that sitting had it not been reargued. Justice Souter wrote a majority opinion for that sitting, indicating he did not lose a majority from that sitting."

June 28, 2006 | Permalink | Comments (0)

Rebranding the Plaintiffs' Bar

From the Wall Street Journal's Law Blog comes a pointer to the WSJ's Washington Wire reporting that a name change may be in the offing for the Association of Trial Lawyers of America. Washington Wire's John Harwood reports that ATLA plans to take a vote at its annual meeting in July "on a new moniker that ATLA leaders hope will better communicate trial lawyers’ mission in the face of criticism by business interests and Republican officials." ATLA's communications director Chris Mather told Harwood that the new name is undecided, but is likely to include the word "justice."

Meanwhile, back at the WSJ's Law Blog, Peter Lattman is kicking off a contest inviting suggestions for ATLA's new name. He doesn't promise a prize, but given the WSJ's big-business bent, I suspect the winning entry is unlikely to pass muster with the plaintiffs lawyers of ATLA.

My suggestion: Justice League of America. Or is that already taken?

June 28, 2006 | Permalink | Comments (0)

Task Codes for E-Mail Overload

E-mail can overwhelm a lawyer. For those of you with overstuffed inboxes, TechnoLawyer Blog highlights one lawyer's "clever method for quickly delegating items in his e-mail inbox." The reference is to a recent article published in ALI-ABA's The Practical Lawyer, Delegating the Deluge: Action Codes for Forwarding Email." The author, Joshua Stein, a real estate and finance partner at Latham & Watkins in New York, describes the system he devised of "e-mail action codes" to use when forwarding e-mails to his assistant.

At some point after e-mail began to overwhelm him, Stein writes, he realized he could delegate to his assistant messages that required straightforward and definable tasks. This created its own problem, because each task needed his explanation, and providing it sometimes took longer than the task itself. So Stein came up with his series of task codes:

"Now, whenever I receive an email message that requires one of these actions, I click on 'forward,' move the cursor to the end of the subject matter line of the email message, type the abbreviated action code right there, and send the message to my assistant for further processing. My assistant then handles that particular piece of my email deluge, so I can spend more time doing legal work and less time doing data entry, file manipulation, and processing."

Stein's article sets out his series of codes and invites others to use them. Of course, there is one drawback to Stein's system -- it requires that you have an assistant.

June 28, 2006 | Permalink | Comments (0)

California's Traps for Unwary Employers

California's employment laws bear a deceptive resemblance to their federal counterparts. But their seeming similarity can lull unsuspecting, out-of-state employers into a false sense of comfort. So say Anthony J. Zaller and Brian F. Van Vleck of Carlton, DiSante & Freudenberger in a guest post today at InhouseBlog. The two provide their top 10 list of the costliest problems that out-of-state employers need to know about in California.

Topping the list: meal and rest period penalties. They explain:

"This is the current favorite claim of plaintiff’s class action attorneys in California. A 2001 statute imposes substantial penalties on employers who do not comply with very technical regulations concerning the timing and duration of employee lunch and rest breaks. ... The aggregate liability that can result over time was aptly demonstrated by a 2005 jury verdict in a meal and rest break class action against Wal-Mart that awarded over $192 million in penalties and punitive damages."

If $192 million in penalties grabs your attention, then visit InhouseBlog for the rest of the list.

June 28, 2006 | Permalink | Comments (1)

And U.K. Law Firm of the Year Is ...

(Drum roll please.) Clifford Chance. It was honored last night as U.K. law firm of the year during "a sparkling event" hosted by the U.K. magazine The Lawyer. The magazine reports:

"Freshfields Bruckhaus Deringer was the other big winner of the night, picking up prizes for Banking/Restructuring Team of the Year, M&A Team of the Year and Pro Bono Team of the Year."

The Lawyer named DLA Piper Rudnick Gray Cary as Global Law Firm of the Year and Simpson Thacher & Bartlett as U.S. Firm of the Year.

Here is the full list of winners of The Lawyer Awards 2006.

June 28, 2006 | Permalink | Comments (0)

June 27, 2006

Tons of Great News for Some Criminal Defendants

This has been a banner week for criminal defendants. In yesterday's Supreme Court decision in US v. Gonzalez, a 5-4 majority decision authored by Scalia overturned a conviction where the Court denied the defendant his Sixth Amendment right to representation by the lawyer of his choice. As reported in this summary, Gonzalez sought to retain an out-of-state attorney, John Low, to represent him on criminal charges in Missouri. The judge rejected Low's pro hac vice application, so Gonzalez proceeded with another attorney who had no criminal experience (Norm Pattis of Crime and Federalism questions Low's motives in referring the case to an inexperienced colleague). Not surprisingly, Gonzalez lost and then appealed, arguing that he was denied his choice of counsel. Scalia and the majority agreed. The Court found that defendants have a right to counsel of their choosing and, more importantly, that denial of the right to counsel constitutes harmful error, period. By contrast, Alito, who wrote the dissent, argued that the Court should have required Gonzalez to show that a different outcome would have resulted had he been allowed to proceed with Mr. Low.

And this morning, Peter Lattman of the Wall Street Journal Law Blog had the scoop on a "hot off the presses" ruling by federal district court Judge Lewis Kaplan, who found that that prosecutors violated the constitutional rights of a group of former KPMG partners in pressuring the firm not to advance them legal fees (I originally blogged about the matter here in the context of how much we should expect corporations to stand up for customer or employee rights when government comes knocking on the corporate door). And there's more commentary on the ruling at White Collar Crime Blog (noting that the KPMG case hits home the reality of how costly corporate crime matters are to defend) and Concurring Opinions, where Dave Hoffman suggests that the government's pressure on KPMG to deny indemnification to employees denies them of their choice of counsel and constitutes harmelss error, just as in Gonzalez.

There's no doubt that these two rulings give defendants added constitutional protection. But how much impact will these rulings have for the majority of criminal defendants whose employer isn't contractually obligated to pay for their defense or who lack the money to hire the lawyer of their choice? Let me know what you think -- and if it matters anyway.

June 27, 2006 | Permalink | Comments (1)

Judges Acquit More Than Federal Juries

Would Enron defendants Ken Lay and Jeff Skilling have fared better with a bench trial rather than a jury trial? Most likely, their lawyers never seriously considered that option -- and I would not have either until I read this original post and the follow-up by Volokh guest blogger Andy Leipold, who found that criminal defendants stand a better chance of acquittal before a jury. Leipold summarizes his findings:

First, I found that the gap between bench acquittal rates and jury acquittal rates was quite large: over the 14 years I studied, the average conviction rate in jury cases was 84%, while judges convicted slightly more than 50% of the time. Second (using other data), I found that this gap was a recent phenomenon. Between the early 1960s and late 1980s, the conviction rates for judge and jury was roughly the same; the 20 years before that, judges actually convicted much more often than juries.

Leipold asked readers for their thoughts on what factors might explain the acquittal gap between bench and [jury]box. Reasons included (1) judges "grade on a curve" and, after sitting through 20 cases involving violent crimes, might not find a more minor crime as serious whereas a jury would not share this context; (2) defendants will select those judges who they believe will be more inclined to acquit; (3) judges are bound by fixed sentencing rules so rather than sentence a defendant of a nonserious crime to a lengthy term they avoid that dilemma through acquittal; (4) judges might better understand the complex elements of certain corporate crimes and, unlike a jury, would recognize when the prosecution failed to carry its burden and (5) some judges may just have something against prosecutors.

This week, Leipold will continue to blog about factors that he examined, including type of case, seriousness of charge, type of defense lawyer and strength of the evidence. And he welcomes comments on his preliminary law review article. Leipold's work strikes me as one of the more interesting and useful applications of the now trendy Empirical Legal Studies line of scholarship.

June 27, 2006 | Permalink | Comments (3)

Habits of Highly Ineffective Lawyers

If you feel like saboging your legal career, why not saunter over to Justin Patten's Human Law blog, where he lays out a list of Seven Habits of Highly Ineffective Lawyers, courtesy of Dan Hull. The habits include:

1. Be risk-averse at all times.

2. Tell the client only what it can't do.

3. Whatever you do, don't take a stand, and don't make a

recommendation. (You don't want to be wrong, do you?)

4. Treat the client as a potential adversary at all times. Keep a

distance.

5. Cover yourself. Write a lot to the client. Craft lots of confirming

letters which use clauses like "it is our understanding", "our

analysis is limited to ..." and "we do not express an opinion as to

whether ..."

6. Churn up extra fees with extra letters and memoranda and tasks.

7. As out-house counsel, you are American royalty. Never forget that.

Have you ever employed any of these techniques or been directed to use them by your superior? If you don't like following these rules, not to worry: if you abide by them long enough, your client will fire you.

June 27, 2006 | Permalink | Comments (1)

Law School: An Equal Opportunity Crapshoot

Last week, I blogged about whether law schools' affirmative action programs set minority law students up for failure. There's yet another article on this topic, by Peter Kirsanow in National Review Online entitled Affirmative Action: Students sacrificed in the name of diversity (6/27/06). Kirsanow cites the sources discussed in my earlier post who argue that minority students who gain preferential entry to top schools wind up at the bottom of the class and have difficulty passing the bar or finding jobs. Kirsanow concludes:

If there was a product on the market that caused blacks, or any other group, to end up at the bottom of the class, flunk out in large numbers, and suffer in the job market there would be an uproar for the Federal Trade Commission to pull the product immediately, coupled with calls for congressional investigations. Lawsuits would abound. Not so with racial preferences. Maybe it’s just easier to scam black students than fix the structural problems causing poor performance.

I have two comments on Kirsanow's post. First, growing pressure on the legal profession to diversify is creating new options for minority lawyers. As I noted in my earlier post, corporations and large institutional clients are starting to demand diversity from the firms that serve them. Now, judges are demanding diversity as well. In this article, Judge Mulls Diversity of Law Firms (Houston Chronicle, 6/26/06), Joshua Freed reports that Minnesota federal magistrate Franklin Noel has asked those firms vying for lead counsel status in a class action against United Health to provide information on how many women and minorities the firm employees. The judge explained that this information will not decide which firm becomes lead counsel, but nevertheless, will be one of several factors considered. As this case suggests, law firms will start foregoing business opportunities unless they can attract minority attorneys. And like it or not, most prominent firms will favor minority graduates from elite law schools over those who attended lower-tiered schools. The increasing focus on diversity undermines Kirsanow's conclusion that affirmative action "causes minorities to suffer in the job market."

Second, as to Kirsanow's argument that today's affirmative action system "scams black students," some, like Cameron Stracher, would argue that the entire legal education system is an "equal opportunity scammer." Over at the WSJ Law Blog, readers have been debating the merits of Cameron Stracher's WSJ opinion piece over whether law school keeps your options open. Stracher writes that:

In deciding whether to go to law school, here is the question you need to ask yourself: What do you want to be when you grow up? If you want to be a lawyer, then by all means go to law school. If you want to defend the poor, work in public service, be a civil servant, go to law school. But if your only reason for going to law school is because you want to be rich, or because you are confused and someone has told you it will “keep your options open” STOP RIGHT THERE, and read on.

Yes, some lawyers are rich. Some lawyers are also movie producers, and WSJ columnists, and investment bankers. But, statistically speaking, your chances of becoming rich (or becoming a banker, etc.) are greater if you have gone to a top ten law school. This doesn’t mean that students from non-elite schools can’t become wealthy lawyers or even wealthy movie producers, but the odds are against them. Put another way, the bottom of the class at Yale still has a degree from Yale. The bottom of the class at many other schools may not even have a job.

This is not my fault (as one of my students suggests in his/her post). It is simply a fact. One that is often ignored by students, and glossed over by law school faculty and admissions deans. We don’t control the market, but the market may control your future. No one would ever go to medical school to “keep his or her options open.” Why have we perpetuated this myth about law school? Perhaps because many law faculty are refugees, themselves, from law firm practice. Perhaps because we have a vested interest in educating as many students as we can. Perhaps because students look at the most visible writers/producers/bankers and think anyone can do it, even if they can’t.

Perhaps Kirsanow is right that minorities who gain entry to elite law schools through affirmative action programs and think that they will succeed as lawyers are being duped. But so too are lots of nonminorities who look to law school as a way to keep options open, as an entry to a career in the movies or business or to make tons of money, only to discover the harsh reality after graduation that law school isn't necessarily a ticket to financial success. At the end of the day, law school, like anything else in life, is a crapshoot, albeit it a pricy one. Why should taking a risk or being stupid (whatever you choose to call it) be reserved for whites only?

June 27, 2006 | Permalink | Comments (2)

June 26, 2006

L.A. Press Honors Law Blogger

Journalists and bloggers have somewhat of a love/hate relationship. Even as many journalists become bloggers, they continue to debate whether bloggers are journalists. Thus it is noteworthy when established journalists honor a blogger -- and even more so when they honor a lawyer/blogger.

So we here at the Law.com blog network are beaming with pride over the fact that one of our own, J. Craig Williams, was honored this weekend with an award from the Los Angeles Press Club. It named his blog, May it Please the Court, as best weblog by an individual (scroll down to award I.16), based on writing, voice and added value of a single person. Williams received the award at a banquet at the Millennium Biltmore Hotel, where other honorees included Larry King and Kevin Sites.

Williams is founder of The Williams Law Firm in Newport Beach, Calif. He is my co-host for the legal-affairs podcast Coast to Coast.

June 26, 2006 | Permalink | Comments (0)

Blawg Review: A Flight of Fancy

If you sometimes feel you spend too much time in airports, consider Sheryl Schelin -- she works in one. Schelin is in-house counsel for the Horry County Department of Airports in Myrtle Beach, S.C., and author of the blog The Airport Lawyer.

Her knowledge of aviation serves her well as she hosts Blawg Review #63 and takes us on a sometimes-dizzying international flight high above the legal blogosphere. She starts her flyover in Toronto and then returns to the United States for a not-as-the-crow-flies trip over St. Louis, Manhattan, Boston, Washington, Oklahoma, Texas and Denver. From there, she soars to Somalia, China and even Guantanamo Bay, before landing back at her home base in Myrtle Beach. She leaves us with this quote from Henry Minizburg:

"That is the trouble with flying: We always have to return to airports. Thank of how much fun flying would be if we didn't have to return to airports."

Yes, but think of what we would have missed in the world of blogs had Schelin not returned to hers.

June 26, 2006 | Permalink | Comments (0)

Busy Day at the Supreme Court

The Supreme Court issued four opinions today. Howard Bashman and Lyle Denniston have early overviews. The four cases:

Struck down Vermont's campaign finance law. More from AP, Reuters, Bloomberg, Wall Street Journal, Rick Pildes at SCOTUSblog, Medill.
Upheld the death penalty in Kansas. More from AP, Reuters, The Wichita Eagle, Medill.
Concluded that error in defining a sentencing enhancement was harmless. More from Medill.
Declined awarding expert fees to parents in a lawsuit under the Individuals with Disabilities Education Act. More from Medill.
Reversed the conviction of a defendant deprived of his choice of lawyer. More from Reuters, Medill.

June 26, 2006 | Permalink | Comments (0)

Should the Net Be Neutral?

Simply asking the question suggests its absurdity, yet the issue of whether everyone should have equal access to the Internet is up for grabs. As Justin Patten notes today -- following up on posts by legal bloggers Kevin O'Keefe and Diane Levin -- no less a Net luminary than Sir Tim Berners-Lee, the original developer of the World Wide Web, has entered the fray, asserting that a campaign by telcos to create a two-tiered system of broadband access would end free access for Internet users in the United States.

At issue is a campaign by cable and phone companies to urge Congress to allow them to decide which Internet sites get to use high-speed lines. As writer Cory Doctorow explains:

"Phone and cable companies are looking for the right to charge popular Internet sites like Google and Yahoo to carry data to customers. The big Internet companies, they argue, are getting a free ride, using lots of bandwidth to get to customers and not paying a fair price for it. This will only get worse, they say, as multimedia content becomes more popular, demanding more bandwidth."

Doctorow, who writes the blog Boing Boing, calls their argument "rubbish," and any number of commentators agree, including Daniel Weitzner, John Doerr and Reed Hastings, Craigslist founder Craig Newmark, eBay CEO Meg Whitman and Rockboom host Amanda Congdon.

For those hoping to salvage a user-neutral Internet, says Lawrence Lessig, this is a critical time:

"After just barely squeezing a victory in the House Judiciary Committee last week, the press is on now for the vote on the floor. The Congress Daily (which can’t be linked to) estimates about a $1 million per week is being spent on ads by telecom and cable companies to fight neutrality legislation."

He urges action through Save the Internet or by other means. Kevin O'Keefe calls on lawyers to rally to support Net neutrality. As Patten puts it:

"Do you really think that the telecoms industry is going to run this in a way which does not threatens the open model of the internet? Broadband providers will become gatekeepers to the web's content and it appears it will not be open as before."

June 26, 2006 | Permalink | Comments (5)

No Complaints About Portnoy

The title character of Philip Roth's 1969 novel, "Portnoy's Complaint," was somewhat self-obsessed. The same appears not to be true of Elliott I. Portnoy, named Friday as the youngest-ever chairman of the Chicago firm Sonnenschein Nath & Rosenthal.

Washington-based Portnoy, 40, has an altruistic side that led him, as a Rhodes Scholar at Oxford in 1988, to found KEEN (Kids Enjoy Exercise Now), an organization offering sporting and recreational activities for children with special needs, and to bring it to the United States in 1992. Since joining Sonnenschein from Arent Fox in 2002, he has worked through the firm to expand KEEN to other cities where it has offices.

Washingtonian magazine named Portnoy its Washingtonian of the Year for his community service efforts, and the Washington Wizards basketball team gave him its 2004 Abe Pollin Humanitarian Award.

Humanitarian may be one name given to Portnoy, but former Wizards player and basketball great Michael Jordan has another name for him: "The Nanny." As reported last year by The Hill, the name came about because Portnoy's wife, Estee, is Jordan's business manager. As Portnoy explained:

"My wife travels with him fairly extensively, and because I am often not there … when he sees me he always says, 'Oh, hey, look, the nanny’s here,' because the assumption is I’m the guy taking care of the kids while my wife is away."

Estee Portnoy is also active in KEEN. As for his day job, Portnoy, a lobbyist, told The Hill:

"I’ve got an incredible gig here. I am able to pursue policy initiatives that are interesting and meaningful and intellectually challenging."

All that, and managing the firm as well.

June 26, 2006 | Permalink | Comments (0)

June 23, 2006

Government Causes Its Own Leak With Adobe Glitch

Howard Bashman comments on this story from the New York Times (6/22/06), reporting that eight pages of a 51-page government brief filed in federal court that had been blacked out to protect sensitive information concerning a grand jury investigation of steroid use in baseball can be viewed by cutting and pasting the passages into a word-processing document. Apparently, the government had converted the document to PDF, either to conform to court filing rules (in my experience, most federal courts require filings in PDF) or, perhaps, in an attempt to scrub the metadata from the document. Whatever the reason, the Adobe tools used to "black out" the sensitive passages did not survive conversion back to Word format (the Times article even includes a diagram showing how the blacked-out portions were revealed).

Bashman's comment on all of this:

So you can use Adobe Acrobat to avoid Microsoft Word's metadata problem, but apparently Adobe Acrobat's redact function does not truly hide the document's text if the text is merely blackened-out.

Meanwhile, the article poses a larger ethics question for attorneys: If we receive a PDF document with a blacked-out section, is conversion to Word in an effort to access the privileged sections an ethics violation? Or is the onus on the party creating the document to take appropriate measures to protect confidential information and access of that information by the receiving party through whatever means possible is fair game?

June 23, 2006 | Permalink | Comments (0)

Supreme Court Decision Extends Protection to Victims of Workplace Retaliation

Yesterday's Supreme Court decision in Burlington Northern & S.F.R. v. White had many bloggers commenting yesterday, well in advance of reports in the traditional, print media, which appeared this morning (roundup courtesy of How Appealing). A long-awaited decision with significant implications for employment lawyers, Burlington holds that employees who suffer retaliation by employers as the result of complaints of workplace discrimination may sue for relief, even if the retaliatory action is not an "ultimate employment decision," such as termination or a formal demotion. Under the Supreme Court's standard, a claim for retaliation is now actionable where a plaintiff shows that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'"

There's been a good deal of discussion on the impact of the decision going forward. Linda Greenhouse's article in the NY Times reports that the potential impact may be widespread, given the increasing number of retaliation claims:

Retaliation claims make up an important and rapidly growing part of employment law. Some 20,000 retaliation cases were filed with the Equal Employment Opportunity Commission in 2004, a number that has doubled since 1992. The cases now account for more than one-quarter of the federal agency's docket.

"This is an exceptionally important decision that changes the law in most of the country," Eric Schnapper, a law professor at the University of Washington who helped represent the plaintiff in the case, said in an interview .

And at Employers Lawyer Blog, Michael Fox has this to say:

My first thoughts -- a not terribly unexpected result. It will be talked about as a pro-employee decision -- which it is -- but employers can take heart in the explanatory comments, particularly that the test is objective. Similar to determining whether conduct meets the severe and pervasive standard for sexual harassment, whether an action is sufficiently adverse for retaliation may often be decided by the Court. What it certainly means however is a period of time until the Courts, at least in 10 circuits, sort through their new standard.

Criticism of the Court's decision comes primarily from those who are concerned that the Court's test for determining whether an action is "sufficiently adverse" is undefined and will create more litigation. Tony Mauro's summary of Burlington notes the following:

“It’s [the Court's decision] an undefined standard that will create a lot of litigation,” says Allan Weitzman of Proskauer Rose, an employment law specialist. “None of our clients endorse retaliation, but we are talking about a situation that is fraught with human nature. If someone tells you that one of your employees has complained about you to the EEOC, you would be unhuman not to take it badly. Employers will have to be trained on how to be unhuman.”

Meanwhile, Ross Runkel at the Employment Law Blog offers his insight on how the Supreme Court decision might be applied.

Examples:

o Changed job duties. In the Burlington case, the employer changed the employee's duties, however the duties were still within her job description. The job description did not matter. What mattered was that the new job was dirtier, harder, less prestigious, and perceived by other employees as being worse.

o Temporary suspension. In the Burlington case, the employee was suspended for 37 days, and then reinstated with back pay. The Court said a reasonable employee would find a month without a paycheck to be a "serious hardship."

o Schedule change. Might not matter to many employees, but "may matter enormously to a young mother with school age children."

o Refusal to invite to lunch. Usually trivial, but exclusion from a weekly training lunch might well deter a reasonable employee from complaining.

Whether you view Burlington as a lifesaver to employees who've suffered retaliation or as a burden to employers who'll now have to remain 100 percent stoic in the face of a discrimination claim, litigation over how the Court's new standard will apply will keep employee and employment lawyers (as well as the courts that hear these claims) busy for a some time to come.

June 23, 2006 | Permalink | Comments (0)

Tick Off a Customer (or Client), See It on the Nightly News

Back in the good old PW (pre-Web) days, you could tick off a customer or curse out an opposing counsel in the privacy of your own office, without anyone ever finding out about it. Those days are, emphatically, OVER, as the recent story of Vince Ferrari's experience in attempting to cancel AOL service bears out. For those who don't know, anticipating difficulty in canceling his AOL service, Ferrari taped his conversation with an AOL customer service rep who gave Ferrari a hard time about cancellation. The story since spread to the major media, including "The Today Show," which interviewed Ferrari.

Church of the Customer Blog has the details here on how Ferrari's story spread.

Ferrari posted the recording on his blog a week ago. From that, a familiar pattern emerges:

1. Bloggers spread a story that has a surprising development (i.e., a Comcast technician falls asleep on a customer's couch, or nude photos of a high school art teacher are found online)

2. The story has plenty of concrete details. Audio, video or photographic evidence are ideal.

3. A tangible form of injustice has occurred (multiple missed appointments, getting fired).

4. As the story reaches a certain threshold of recognition in the blogosphere (a top 5 search term on Technorati), the traditional media react. (Ferrari was interviewed Wednesday by Matt Lauer on The Today Show.)

5. Within a day or two, the traditional network story gets posted to YouTube, and the word of mouth goes nuclear. The non-blogging audience hears the story for the first time, and the original bloggers post updates about the involvement of traditional media.

So what does all of this have to do with lawyers? Plenty. Already, in the legal profession, we've seen lawyers' bad manners, like a cursing associate or an overly aggressive cease and desist letter, make Internet news. In fact, the only reason that these stories probably didn't spread to major media is that they lack mass news appeal. Still, it's only a matter of time before a disgruntled client tapes a conversation with an attorney trying to pressure him into an unfair settlement or plea arragnement -- and that news makes it into the national headlines. Yes, as lawyers, professional ethics rules obligate us to behave in a dignified manner and to treat clients well -- but the threat of being humiliated on national TV just may pose more of an incentive to abide by these rules than even the threat of a bar grievance.

June 23, 2006 | Permalink | Comments (2)

New Rules for Dealing With E-Mail Overload

Almost everyone has a love-hate relationship with e-mail: We love the convenience of the medium, but resent the time sink caused by having to read and respond to dozens of e-mails. Still, besides complain, no one really ever does anything about it. Until now. Rees Morrison reports here on one law department's policy: It has a rule that lawyers will not log on to their e-mail accounts two hours before or two hours after normal working hours in the jurisdiction in which they are located.

Morrison comments:

Aside from wondering how anyone can enforce such a rule, as cited in Law Dept. Quarterly, Vol. 2, May-July 2006 at 17, I just don’t follow how it helps. If you don’t want to peek, you won’t. If the rule prohibited lawyers from sending e-mail, then at least the volleys and clicks would drop.

Seems to me that all the policy will do is cause an even greater e-mail buildup. Don't you want lawyers to read e-mail before and after the working day begins rather than interrupt the work day?

June 23, 2006 | Permalink | Comments (0)

June 22, 2006

Expert Testimony and the 'N-word'

The trial earlier this month of a white man charged with a hate crime for beating a black man with a baseball bat in New York's Howard Beach took an unusual turn when black Harvard University law professor Randall L. Kennedy appeared as an expert witness for the defense. As the New York Times reported, Kennedy, author of the book, "Nigger: The Strange Career of a Troublesome Word," testified that the n-word -- which the defendant called his victim as he beat him -- is not necessarily a racist term, but "a complex word" that "has many meanings."

In an essay published this week, George E. Curry, editor-in-chief of the National Newspaper Publishers Association News Service and BlackPressUSA.com, considers Kennedy's testimony and that of a second defense witness, hip-hop music producer Gary Jenkins, who said the word has been stripped of its noxious odor. Curry reports that defense attorney Albert Gaudelli, buoyed by these two witnesses, said in his closing argument:

"You don’t like that word. I don’t like that word, no one over 30 likes it, but it’s a fact that people under 30 use the word differently. Ignore this word, it’s merely another descriptive word."

The jury chose otherwise, finding the defendant, Nicholas Minucci, guilty. But Curry argues in this essay that even though Gaudelli "failed in his attempt to sanitize" the word, the trial was a reminder that "the n-word should not be used in any forum." He cites a reference to the word "as perhaps the most offensive and inflammatory racial slur in English," and concludes:

"That’s exactly what it is. And use of the n-word should never be defended by Harvard professors, hip-hop artists or anyone else."

As UCLA law professor Devon Carbado questioned earlier this month at the blog blackprof.com, even if one were to accept the argument that the word's meaning depends on its context, how would that have helped the defense in this case? He wrote:

"Whatever the strange career of this troublesome word might be, its deployment in the context white on black violence is, for many, precisely the 'career' of the word that most people worry about."

June 22, 2006 | Permalink | Comments (1)

Finds From the Prison Library

A University of Wisconsin library student who volunteers with the Dane County, Wis., Jail Library Group has assembled a fascinating photoset on Flickr of items he has found abandoned at the jail in books or on the book cart. His collection includes drawings, poems, notes, coupons, receipts, puzzles and more.

[Via WisBlawg via Boing Boing via grow-a-brain.]

June 22, 2006 | Permalink | Comments (0)

Podlaw?

Bag and Baggage blogger and Reed Smith lawyer Denise Howell is posting this week from the Corporate Podcasting Summit in San Francisco. Yesterday, she and IP lawyer Colette Vogele spoke on a panel about the disruptive potential of podcasting, followed by lawyer Andrew McCormick on legal issues and DRM in podcasting.

Their panels "touched on the logistical issues around registering a work (or series of works) like a podcast with the Copyright Office." They are daunting, she says, leading her to conclude "that the registration process needs to adapt to more readily embrace media like blogs, podcasts, vlogs, videocasts, etc." The same is true with regard to licensing music to use on a podcast, she says, adding:

"Like the copyright registration process, the traditional music licensing framework was established without reference to the sorts of technologies and media we see today, and doesn't (yet? hope springs eternal) accommodate them well."

As it turns out, Howell recently interviewed her co-panelist Vogele for an upcoming installment of her own podcast, Sound Policy. Vogele is co-author of Podcasting Legal Guide: Rules for the Revolution, "a general roadmap of some of the legal issues specific to podcasting."

With so much interest in the law of podcasting, we can only take this as evidence that podcasts, like blogs, are now serious tools of business.

June 22, 2006 | Permalink | Comments (0)

Why Words Matter on the Web

When writing a Web page, the words you use and how you use them can raise or lower your search-engine rankings. This process of constructing a Web site for optimal search results is the focus of the Legal SEO & Marketing Blog, and it recently provided a simple but compelling example of how this works.

How often have you seen a link on a Web page that says, "click here"? Google aggregates all those "click here" links so that if anyone ever searches for those words, the No. 1 search result is Adobe Acrobat Reader. Why? The blog explains:

"This isn't because Adobe is optimizing their web site for click here. Instead, a lot of web pages are telling people to click here to download Adobe Acrobat Reader."

Interestingly, click here leads to different results than click here. The moral of this simple story is to choose your words carefully when writing a Web page:

"The lesson here is to label your links correctly. If your web site offers criminal lawyer resources, then label the link as such instead of telling people to click here for criminal lawyer resources. It'll take a lot of Google Juice to unseat Adobe Acrobat Reader for the #1 click here spot."

June 22, 2006 | Permalink | Comments (0)

Now on YouTube: Sentencing Hearings

In January 2005, I wrote about an Ohio judge who posted video recordings of the sentencing hearings in his courtroom to his Web site. Now, Medina County Common Pleas Judge James L. Kimbler is using the popular video-sharing site YouTube to bring these videos to an even larger audience.

Kimbler tells Associated Press that YouTube lets him post the videos more quickly. Before, it took two weeks after sentencing for the video to appear online. Using YouTube, Kimbler says, his law clerk can post the hearings within hours of their completion. As of this writing, six Kimbler videos are available on YouTube. As AP notes, you won't see Kimbler in the videos -- the camera is on the defendant.

June 22, 2006 | Permalink | Comments (1)

June 21, 2006

Mandatory Pro Bono Requirements: Making Lawyers Complicit in Bar PR Scams

On the surface, mandatory pro bono reporting requirements, such as that recently adopted in Illinois, seem innocuous enough. After all, what could be controversial about simply asking lawyers to report to the bar annually how much pro bono they've done? Yet, I oppose these requirements, vehemently, as I describe in this post today at My Shingle. As I describe, I resent the bars collecting information on pro bono that I perform in the privacy of my law firm and then using my pro bono hours, along with those of my colleagues, to show what great guys and gals we lawyers are. (You've seen the adoring headlines: "Oregon Lawyers Provide 86,000 Hours of Pro Bono in 2005.) The fact is, lawyers have a long way to go to ensuring availability of affordable legal services for lower- and even middle-income individuals. I'd rather not boast about my pro bono work until the bar is closer to making access to law a reality.

June 21, 2006 | Permalink | Comments (37)

Law Firms -- Figuring Out What's Ahead

In an increasingly competitive market, law firms that can read the future stand the best chance of success. But since most law firms don't have a CTRO (chief tealeaf-reading officer) on staff, they need to look to more conventional techniques. Bruce McEwen offers some ideas in his post How Can You Know What's Next? Among other things, law firms can actively scan for information on future trends:

In contrast to passive is active scanning, where one poses a question to oneself (or one's firm) and proceeds to look for answers in whatever one normally comes across: For example, an ad agency might ask everyone to start reading and viewing things from the perspective of what the impact of Tivo will be on the traditional 30-second ad. For a law firm, the "active scanning" question might be: What macroeconomic trends are emerging that suggest practice areas we want to develop in preparation for the next 3-5 years? For example, who saw private equity and hedge funds coming? If your firm didn't -- especially after the passage of Sarbanes-Oxley in 2002 -- what were you thinking?

McEwen also writes that there's serendipitous scanning, "where you purposefully expose yourself to material you wouldn't see otherwise." He describes:

Famously, when Buckminster Fuller was travelling, he would pick up a magazine at the airport bookshop at random and proceed to read it cover-to-cover on the plane, looking for new perspectives on life he was not otherwise exposed to. This may seem a bit far out for you, but what if you made a point of packing your carry-on with reading material from the bedside tables of your spouse, your kids, and a random selection of your partners (trust me, they'll be flattered you asked!)?

The Boston Globe has this advice (6/19/06) for law firms: competitive intelligence. According to the article, competitive intelligence is:

Sometimes called corporate spying, opposition research, or simply market analysis, the term refers to marketplace knowledge that can be used to make business decisions.

From the article, here's how a law firm might incorporate competitive intelligence in comparison with how many firms currently make decisions:

For lawyers, that [competitive intelligence] analysis might mean understanding how an upcoming merger of law firms could change the competitive landscape, how an anticipated regulatory change could affect business, when a practice area is ripe for expansion, or whether the arrival of a national law firm poses a threat. Without that knowledge, a law firm could overlook a promising opportunity to merge or lose a lucrative client to a rival firm.

These are tactical considerations that sound basic to many business people and perhaps even obvious. But some law firms have been known to make strategic decisions based on little more than intuition, gut instinct, or such ill-considered factors as opening a new office based on the desire of a single client, expanding overseas because a rival has done so, or allowing a bigger-is-better mentality to drive a decision to merge.

Whatever you call it -- active or serendipitous scanning or competitive intelligence -- clearly larger firms are realizing that they must incorporate these techniques to play in an increasingly competitive environment. Is your firm looking ahead?

June 21, 2006 | Permalink | Comments (4)

New Jersey Loves to Tax Lawyers

Craig Williams blogs about a new proposal in New Jersey that would seem, at first blush, to be a popular idea among lawyer-bashers: taxing fees charged by lawyers, accountants, consultants and other similar professionals. But the idea has already been tried in Florida, but was quickly reprealed "because professional work flew out of town faster than a speeding bullet and resulted in low revenues. " Williams suggests that a preferable alternative to taxing lawyers to make up a budget shortfall might be to cut the budget.

Of course, this isn't the first time that New Jersey has singled out lawyers for special fees. Ed Poll offers this criticism of a New Jersey requirement mandating that lawyers pay $75 annually for creation of a fund for victims of medical malpractice.

June 21, 2006 | Permalink | Comments (0)

Does Affirmative Action at Law Schools Help or Hurt Minorities in the Long Run?

Around the blogosphere, there's been a wide debate over whether law school affirmative action programs help or hinder minorities in the long run. From what I can tell, the debate's been generated by a couple of developments. First, last week, the United States Commission on Civil Rights took up the issue of affirmative action at law schools at a five-hour hearing. One of the witnesses, Volokh Conspirator and George Mason professor David Bernstein, summarizes his testimony. Related is an ABA proposal announced a few months ago that would make law school accreditation contingent upon racial preferences in admission and hiring. Also, there's Stuart Taylor's controversial National Journal column (and this subscription-only Atlantic article ), How Racial Preferences Backfire, that was the subject of intense debate at Peter Lattman's WSJ Law Blog.

Phew! That's a lot of material to cover. But essentially, Bernstein expresses concern over a recent study showing that many minority candidates admitted to elite law schools under aggressive affirmative action programs either fail to graduate or pass the bar, while only 8 percent wind up in the top half of the class. Bernstein also testified that law schools don't even disclose these success rates to "diversity candidates" so that they can make informed decisions about where to attend school. In his post, Bernstein mentions (and seems to agree with) the conclusions of a study by Richard Sander that "is predicated on the idea that a student is better off flourishing at a lower-ranked school than floundering at a more elite institution. "

Taylor picks up the argument at the law firm level, argung that law firms' desire to diversify to the point where it will hire lesser qualified applicants dooms minority lawyers to failure:

Most -- if not all -- of the nation's leading law firms seek to become more diverse by using "very large hiring preferences" for African-Americans and smaller preferences for Hispanics. So most of their newly hired minority lawyers have relatively weak academic records that would have brought rejection had they been white [...] Many capable African-Americans experience frustration and failure because racial preferences thrust them into elite settings where they compete against whites with far better qualifications [...]

Large law firms feel enormous pressure -- from corporate clients, the media and others -- to become more diverse. So for decades they have aggressively recruited black and Hispanic law students. Since very few have grades that meet the firms' usual standards, the firms hire many minorities with grades "far below those of the white students hired at the same firms."

Even though blacks make up only 1 or 2 percent of law students with high grades, they make up 8 percent of large law firm hires. One survey shows that at least 46 percent of black lawyers at large firms (compared with 14 percent of whites) had law school GPAs below 3.25. Fifty-six percent of these black lawyers admitted thinking that their race or ethnicity had been relatively important in winning them job offers.

Taylor also sites Sander's conclusions that grades are indicative of success at large firms:

Sander shows that large law firms pay very high salaries to attract the people with the highest law school grades. And available data bear out the firms' belief that these grades measure important skills. ... Surveys of University of Michigan Law School alumni, for example, find that those "with higher GPAs are more likely to survive the large-firm competition for partnerships" and earn more money.

But, many of the comments at WSJ Law Blog are skeptical that minorities' lack of success is explained by lower grades in law school. One commenter argues, "Corporate law firm partnerships are stacked against minority and female associates" -- and no one has ever contended that females lack credentials or good grades.

I don't agree with an ABA proposal mandating racial preference. But nor do I have a problem with law schools that voluntarily choose to implement affirmative action to increase diversity. All things told, a minority who attends an elite school stands a better chance for success at the bottom of the class than if he or she goes to a lower school For starters, there's no guarantee of success for anyone at a top school or lower-level school. As New York Lawyer columist Ann Israel always advises, you should go to the best law school you get into. A top school opens doors, even if life at Biglaw doesn't work out. Second, as with women attorneys, minority lawyers will find success at firms when they start attracting clients. At Biglaw, the bottom line isn't brains but earnings potential, which is why large firms will hire former congressmen and well-known political figures irrespective of where they went to law school. Maybe it makes law professors feel better to think that brains matter in law -- and that may be true for selections for the court.

Finally, do we truly measure minority success by examining retention rates at law firms? With corporations calling, why should minorities share the wealth with big firms? Indeed, many are starting their own firms, as referenced here or here. Or do we only define success in law as big-firm partnership?

June 21, 2006 | Permalink | Comments (0)

June 20, 2006

Bloggers Debate the Impact of Davis

Yesterday's Supreme Court decision in Davis v. Washington "represents a subtle retreat from the presumption of innocence," argues Norm Pattis at Crime & Federalism. In Davis, Justice Antonin Scalia wrote for a unanimous Supreme Court that a crime victim's 911 call was not "testimonial" and could be admitted into evidence, even if the caller was not available to appear in court and be cross-examined. A core problem with the ruling, says Pattis, is that the court required no evidence of the witness's unavailability, instead accepting the broad proposition that domestic violence victims are often afraid to appear in court.

"What Scalia has done was substituted speculation about why the victim was not available for proof that a defendant caused the victim to be unavailable. He did so at the expense of the presumption of innocence and at the behest of a public interest group claiming special rules of evidence for victims of some crimes."

If Pattis sees the decision as a subtle retreat, the lawyer who lost the case says that he does not believe the opinion "necessarily portends a seriously wrong turn in the law." Jeffrey L. Fisher, who argued the case on behalf of petitioner Adrian Davis, writes at SCOTUSblog that the decision's practical impact may be less onerous for criminal defendants than might appear from Scalia's theoretical discussion.

Fisher notes that the court's 2004 ruling Crawford v. Washington, that testimonial statements of absent witnesses ordinarily may not be introduced, defined the outer boundaries of "testimonial," but "left the status of a great mass of statements unresolved." Davis, if nothing else, defines new boundaries, Fisher says. While the court concludes that the 911 call is not testimonial, it rules that a police investigatory interview in the companion Hammon case is. Fisher reads this to conclude "that the Court thinks most of the statements in between Davis and Hammon are testimonial."

"I think that, fairly read, the lower courts should take away from today’s opinion that the Court is serious about the right to confrontation and that statements describing past incidents to law enforcement agents cannot serve as a substitute for live testimony at criminal trials."

Fisher's post at SCOTUSblog is one of several comments from guest contributors as part of a blog-symposium on the Davis case.

June 20, 2006 | Permalink | Comments (0)

On Connections and Intentions

From separate corners of the legal blogosphere yesterday come two meditations on balancing life and lawyering. One considers the importance of connections, the other considers intentions.

For Arnie Herz at Legal Sanity, changes in his two children's social connections inspire thoughts about connections in lawyers' lives. As each child prepares to move up to a new school in September, Herz observes how they find security and happiness in their relationships with other children who share common interests. Lawyers, too, can "thrive on such interest-based connections," Herz believes. Many lawyers tell Herz that they feel isolated and lonely even through they are surrounded by any number of co-workers every day. Law firms can address this lack of esprit de corps, he believes, through broader encouragement of affinity groups -- not just built around common denominators such as race, ethnicity, gender and sexual orientation but around any number of shared interests: books, travel, music.

"Regardless of their focus, they hold great potential for fostering the kind of employee bonds that compel career contentment and thwart attrition."

Family also provided the inspiration for Ernest Svenson's mediation at Ernie the Attorney. In his case, it was an introspective e-mail from his brother on his hard road to learning the lesson, "We're all responsible for our own successes and failures." Says Svenson:

"I'm still learning this lesson, which is unfortunate, but at least I'm narrowing down the list of people who I can fault for my failures. I'm down to one."

Rather than focus on blame, Svenson decides to act, waking yesterday at 5:45 a.m. to resume theyoga class he'd stopped many months earlier. It was the same instructor, one who'd started every class by asking everyone to examine their intentions. Until yesterday, Svenson wrote, he had never understood what the instructor meant by that. Then yesterday, he said, he finally understood: "The question is not what we are, but what we're going to do about it."

June 20, 2006 | Permalink | Comments (0)

A Business-Judgment Rule for Med/Mal?

A debate between two legal bloggers kicks around the question of whether courts should apply a principle analogous to the "business judgment rule" to refrain from second-guessing doctors' decisions in medical malpractice cases. It all started Sunday, when Ted Frank at Point of Law, writing about a recent $30 million verdict in a Philadelphia med/mal case, noted that the case turned on a battle of the expert witnesses. He wrote:

"[O]ne immediately recognizes problems when juries are asked to decide between two experts about the appropriate treatment course. If reasonable doctors disagree, both treatment courses should be considered non-negligent. Otherwise, one jury could find treatment A negligent, while another jury can find the alternative treatment negligent, and doctors are effectively blamed for any bad result. Yes, I know no court adopts a 'business judgment' rule for medical malpractice, though this sort of discretion is given attorneys in legal malpractice cases. But why not?"

Frank's comment prompted a lengthy and considered reply from Peter Nordberg at Blog 702 on whether courts in med/mal cases should apply the more mistake-tolerant approach they traditionally take in reviewing the business decisions of corporate boards. The question, as Nordberg sees it, is whether such a rule "could be tied to some acceptable standard for 'reasonableness' that would represent a clear improvement on the current regime from the standpoint of promoting consistent results that could also be accepted as falling within the broad limits of fairness and justice."

Nordberg writes that he strongly doubts that such a rule would lead to the development of a consistent and workable rule. Further, he notes a fundamental distinction between business and medical decisions:

"Corporate officers and directors have an inherent incentive to make good business decisions, because their economic fortunes are tied to those of their companies -- or so goes the argument. Malpractice exposure apart, what is the parallel economic incentive for health care providers?"

Frank follows with two replies to Nordberg. In the first, he explores the differences between legal malpractice and medical malpractice, concluding, "[I]t's hard to imagine lawyers willingly exposing themselves to the same sorts of litigation risks that doctors face." In the second, he addresses Nordberg's contention that corporate officers and directors have an inherent incentive to make good decisions. Franks notes that the business-judgment rule applies with equal force to directors and officers who leave a company:

"[T]here's no sliding scale that applies the business judgment rule with a tighter or looser hand depending on the surrounding circumstances of an officer's diversified financial portfolio."

Nordberg, of course, offers a reply to Frank. His may not be the final word.

June 20, 2006 | Permalink | Comments (2)

From Kung Fu to 9th Circuit

We learn via How Appealing that the U.S. Senate thinks enough of Sandra Segal Ikuta to confirm her by a vote of 81-0 yesterday to serve on the 9th U.S. Circuit Court of Appeals. We care, of course, about what the Senate thinks. And we note that the American Bar Association gave Ikuta its highest rating of "well qualified." But what really matters, of course, is what bloggers have to say, and they, too, seem to offer a general thumbs-up.

When President Bush nominated Ikuta in February, Justin Scheck at Legal Pad noted that although she had been under the radar as a candidate for the seat, she had the credentials to qualify her:

"[T]he current deputy secretary and general counsel of the California Resources Agency seems to have some pretty good federal court credibility, if not a judgeship, to her name, along with a Masters in journalism from Columbia. Ikuta clerked for Ninth Circuit Judge Alex Kozinski and Supreme Court Justice Sandra Day O’Connor before becoming a partner at O’Melveny & Myers specializing in environmental law."

Later, writing in The Recorder, Scheck reported that Ikuta has a mind "as fast as lightning" and once served as editor of martial arts magazines including Inside Kung Fu.

The conservative blog Confirm Them notes that Ikuta takes the 9th Circuit seat formerly occupied by JFK's last judicial appointee, James R. Browning, who took senior status in 2000 after 39 years of service. Of Ikuta, Confirm Them says:

"Whatever her judicial philosophy ultimately turns out to be, Ikuta is considered a well-qualified candidate to join the federal bench. She received an A.B. from Berkeley, an M.S. from Columbia, and a J.D. from UCLA. She clerked for Alex Kozinski on the Ninth Circuit and then Sandra Day O’Connor at the Supreme Court. She then spent fourteen years in private practice with O’Melveny and Myers before Governor Schwarzenegger made her General Counsel of the California Resources Agency in 2004."

Eugene Volokh offers Ikuta his congratulations and notes that she is a graduate of the law school where he is on the faculty.

June 20, 2006 | Permalink | Comments (0)

June 19, 2006

Legal Blogger Goes Country!

Looks like the stock and glamor of legal bloggers is really going through the roof. Consider this trend: First, law professor and Instapundit Glenn Reynolds made it onto the national scene with his columns for MSNBC. MSNBC is a nice gig, of course, but nothing new; lots of attorneys have transitioned into news media. The next wave brought us somewhat sexier positions: Jeremy Blachman and Melissa Lafsky, a law student and junior associate respectively, who secured book deals by blogging about biglaw life from the inside. And U.S. Attorney David Lat, who parlayed his gossipy Web site on the judiciary, Underneath Their Robes, into a full-time gig at Wonkette.

Still, none of these quite compare to San Diego law professor Junichi Semitsu's summer job as the official in-house blogger for the Dixie Chicks' summer tour. Semitsu will travel with the group and has free reign to blog about anything he wants. If this doesn't prove to lawyers that, truly, blogging can take you anywhere, I don't know what does.

June 19, 2006 | Permalink | Comments (0)

Blawg Review's Blond Streaks

According to this women's magazine blurb, nothing says summer more than sun-kissed hair. Here in the blogosphere, Blawg Review is taking that advice to heart, with a blond streak running through last week's Blawg Review #61 hosted by Blonde Justice and this week's Blawg Review #62, where Matt Barr shares hosting duties with his adorable blonde muffin.

Blonde Muffin shepherds us through all of last week's top stories, such as Professor Volokh's response to Captain Copyright, a Canadian educational Web site that misstates the law on copyright and the continuing attempts by James Joyce's descendants to limit access to Joyce's works even for research purposes, as noted in Overlawyered. Also, coverage of the much-discussed Hudson v. Michigan knock and announce rule case and a round-up of law school posts in honor of Fathers' Day acheiving work-life balance.

Finally, Matt links us to his early analysis of Supreme Court opinion statistics for this year. He concludes that "this Court builds consensus far more often than the Rehnquist Court did at the end," which was what many had predicted when Roberts took to the bench.

I don't know if it's true that blondes have more fun, but readers of both this week's and last week's blonde-streaked Blawg Reviews certainly do. What a great way to start the summer.

June 19, 2006 | Permalink | Comments (0)

China Making Legal News Headlines

Back in the early 1990s, after the fall of the Berlin Wall, lawyers regarded Eastern Europe as the new frontier for legal services. Firms set up outposts in Eastern European countries, hoping to capitalize on business transactions in newly capitalist systems. Now, 16 years later, China may be the new Eastern Europe. As various recent articles report, firms are handling more business in China while, at the same time, grappling with differences in China's less mature legal system.

This article, Increasing Competition in China Causes Friction for Law Firms (Law.com 6/16/06),
describes one major problem that U.S. firms face: They are prohibited from practicing Chinese law, as are Chinese lawyers who work for those firms. Some firms admit that they may have overreached. Others are not surprised by the rule. Thomas Shoesmith of Thelen Reid & Priest comments that:

"The Chinese bar is very young, and the government is protecting against foreign competitors," Shoesmith adds. "It's no surprise."

When U.S. firms need to advise on Chinese law for global clients, they rely on Chinese lawyers who are called "legal consultants." In this way, firms circumvent the prohibition on advising on Chinese law. But at least one Chinese lawyer, Adam Li, criticizes this "gray-area operation." He says that foreign firms will offer poor advice because they rely on novice attorneys and, also, pay these attorneys far less than U.S.-trained counterparts.

Of course, perhaps there'll be less work for U.S. firms as China's corporations begin to bring on in-house counsel, as described in this article, China's Great Leap In-House (Corporate Counsel, 6/12/06). The article reports that many corporations that, as recently as a decade ago, outsourced legal work, are now beginning to create in-house counsel divisions within the company. There's a huge demand for qualified in-house lawyers; bilingual American lawyers are a hot ticket, coveted by both American and Chinese companies.

Finally, there's at least one law firm that's benefiting from the boom in China law. And it's not a big law firm but rather a Seattle-based boutique, Harris & Moure, whose Weblog, China Law Blog, was recognized as a Typepad featured blog of the day.

June 19, 2006 | Permalink | Comments (0)

Enron Lawyers Picking Up the Tab in a Big Way

For my solo colleagues and me, getting stiffed for five or 10 thousand dollars is fairly significant. So, it's hard for me to fathom how Dan Petrocelli and O'Melveny Meyers must feel now that they may never collect from their client, Jeffrey Skilling, the $25 million that he still owes the firm (on top of $40 million that he's already paid) as reported in this article from the Washington Post, All in a day's work: Law firm stuck with tab after Enron trial. From the article, here's how all that money has been spent:

O’Melveny enlisted five partners, led by Petrocelli, who now bills at $850 per hour but who said that for the Skilling defense, as an “accommodation,” he and others capped their rates at the 2004 level -- in his case, closer to $800 an hour. M. Randall Oppenheimer, who leads the firm’s entertainment division and who has won major cases for Exxon Mobil Corp., and Mark Holscher, a onetime federal prosecutor who has a bustling white-collar defense practice with such clients as former congressman Randy “Duke” Cunningham, also logged hundreds of hours at similar rates.

On top of that, the team included more than a dozen associates and other counsel: junior lawyers who reviewed documents, scoured databases and investigated witnesses, uncovering e-mails Petrocelli used to impeach government cooperators in aggressive cross-examination. Those younger lawyers billed $200 to $500 per hour, depending upon their level of experience.

Still, I can't help but wonder whether all that work was worth it. There's no doubt that Petrocelli deserves credit for an outstanding performance, but could he have done just as well on half the budget? The article mentions that at the outset of the case, the firm believed that it would have access to Skilling's $60 million in cash and assets, but prosecutors put a hold on those funds. Did the firm set a budget with an anticipated ceiling of $60 million because it thought that's what it had access to? Or were the tasks undertaken integral to Skilling's defense? What do you think?

June 19, 2006 | Permalink | Comments (1)

In-House Still a Popular Choice

Remember the dot-com craze, when lawyers fled law firms for fledgling start-ups, with visions of stock options and IPO cash-outs dancing in their heads? Then came the bust, and many former fast-track attorneys in in-house positions found themselves jobless.

But despite lessons of the dot-com days, in-house positions haven't lost their appeal, as described in this story from The New York Times, The Lure of the In-House Job (6/16/06). The article reports on several legal profession luminaries -- including Beth Wilkinson, who prosecuted Oklahoma City bomber Tim McVeigh; former 4th Circuit judge Michael Luttig; and Eric Dinallo, who investigated conflicts of interest on Wall Street under Elliott Spitzer -- who have opted for in-house positions with big-name corporations like Fannie Mae (Wilkinson), Boeing (Luttig) and the Willis Group (Dinallo).

Several factors explain the trend, according to the article. First:

Companies are more interested than ever in looking outside the company for prominent lawyers, particularly those in high positions in government, to navigate the regulatory waters. "The emphasis on compliance is enormous, and the regulatory scrutiny is like never before," said Julie Goldberg, who recruits in-house lawyers for the executive search firm Korn/Ferry International. "Those drivers are behind C.E.O.'s and boards of directors looking for very sophisticated, well-respected, well-networked lawyers who have a very broad understanding of the landscape."

Moreover, companies don't particularly care whether a candidate knows about the company's substantive business. Wilkinson knew nothing about Fannie Mae's mortgage securities business, but believes that she was a desireable choice because of her good relationship with regulators.

Though moving in-house offers a huge salary increase for someone like Judge Luttig, the article states that "partnership at a law firm still beats the general counsel job" in terms of cash compensation. Here are the numbers:

The American Lawyer's most recent survey, published in May, states that partners at 44 of the nation's top 100 law firms drew $1 million or more in compensation in 2005. And 10 firms, nine of them in New York, boasted more than $2 million average "profits per partner." Catherine R. Nathan of the executive search firm Spencer Stuart said cash compensation for a general counsel -- excluding the financial services sector -- starts at about $750,000 and can rise to about $1.8 million.

Most of the attorneys interviewed, however, insisted that they do not expect any reduction in pay and, in fact, believe they may exceed their partnership salaries depending upon how their company performs. My own guess is that "worker bee" partners who aren't really rainmakers benefit most from a move in-house: Not only are they freed from the task of bringing in business but, presumably, they earned less than their breadwinning colleagues at the law firm.

Finally, Mike Cernovich reminds us that in-house isn't just for more experience attorneys. He writes that his 27-year-old wife is going in-house at a Fortune 500 company after only two years of practice at a firm. Apparently, the lure of in-house persists, irrespective of age or experience.

June 19, 2006 | Permalink | Comments (3)

June 16, 2006

The Skinny on the Half-Naked Associate

Within law-student circles, a 2L at the University of Virginia gained mythic notoriety last summer when she reportedly drank too much, undressed too much and dove into the Hudson River while attending a party hosted by the firm where she was a summer associate. She even earned the moniker "Hudson River Girl." Now, another law student, known only as "Theresa," writing at her blog Areas of My Expertise, reveals that there is more to the story than initially met the eye.

As it turns out, not all the student's dives into the Hudson were ill advised. In fact, just a few weeks before the infamous dive, the student won second place in her age group in the 2005 "Race for the River," a 2.4-mile swim in the Hudson to raise funds for river clean-up and preservation. To this information, Theresa adds this postscript:

"In the end, however, there is still much that we can learn from our hero. ... As law students, it turns out that the sheer magnitude of our egos is sufficient to inspire us to do things that, for 'the normals,' could only possibly be explained in terms of a potent combination of tequila and very poor judgment."

I'll drink to that.

June 16, 2006 | Permalink | Comments (7)

On New York's Restrictions on Lawyer Advertising

New York's proposed restrictions on lawyer advertising are so onerous that they make Justin Patten glad that he practices in the United Kingdom. As reported yesterday by the New York Law Journal, the proposed rules are "so expansive and cover so many angles -- from soliciting mass tort clients to sponsoring pop-up Internet ads to using celebrity voice-overs -- that the justices have taken the unusual step of ordering a 90-day public comment period before the disciplinary standards take effect." This leads Patten to comment:

"Let us be quite blunt about it. The English & Wales Law Society does not have a good reputation amongst lawyers (and the public as well). ... Nevertheless I cannot believe that the Law Society of my country would be doing what is going in New York state with its proposed new advertising rules for lawyers."

Patten points to the comments of Dennis M. Kennedy at Between Lawyers, who says the proposal would bring about "a shocking number of draconian and micro-managing rules." Kennedy continues:

"This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era."

Kevin O'Keefe at LexBlog is equally blunt in his criticism:

"[Y]ou can see why the legal profession has an awful profession. We go around passing rules that make us look like idiots and prevent us from helping you the consumer. Then to make matters worse, we'll spend years in hearings on grievances over alleged illegal conduct interpreting the new rules. Great stuff."

The comment period runs to Sept. 15. More about the rules and the procedure for commenting can be found on the court's Web site.

June 16, 2006 | Permalink | Comments (1)

Coffee, Tea and Holland & Hart

Beginning next month, passengers on Frontier Airlines will get an unusual form of in-flight entertainment -- a broadcast produced by Denver law firm Holland & Hart.

The Denver Business Journal reports that a five-minute, business-oriented program, called "Business Class," will be broadcast on the airline's free in-flight channel. The program will feature a Denver-area business and then close with a 20-second commercial about the firm. Marketing director Mark Beese tells the Business Journal, "It's marketing of substance."

June 16, 2006 | Permalink | Comments (0)

Marking Bloomsday With a Lawsuit

Today is Bloomsday, marking the 1904 day in the life of Dubliner Leopold Bloom chronicled in James Joyce's Ulysses. In Ireland, the official commemoration is canceled, in deference to the funeral and burial of Charles J. Haughey, Ireland's former prime minister. Meanwhile, in the United States, lawyers are observing the day in their own unique way -- commencing litigation.

As Lawrence Lessig reports on his blog, the Fair Use Project of the Stanford Center for Internet and Society has filed a copyright lawsuit on behalf of scholar Carol Loeb Shloss against Joyce's grandson and only surviving heir, Stephen Joyce, who claims the right to control access to Joyce's papers and letters. Lessig claims that Joyce is misusing copyright law to intimidate researchers and block publication of their work. More about the lawsuit and Stephen Joyce's battles with scholars can be found in an article by D.T. Max in the June 19 New Yorker.

Commenting on the case, Ted Frank at Overlawyered takes issue with the grounds underlying Lessig's lawsuit:

"Lessig's insistence on a misuse, rather than a right of fair use, legal theory is unfortunate: the suit would seek to revoke the copyright, and, if successful, could have implications that would make copyright litigation more, rather than less, likely."

A question Leopold Bloom once asked may apply by analogy to lawyers: "Do fish ever get seasick?" Happy Bloomsday.

June 16, 2006 | Permalink | Comments (0)

Bloggers 'Knock' Hudson Ruling

If there is a cheering section for yesterday's 5-4 Supreme Court ruling in Hudson v. Michigan, weakening the longstanding "knock and announce" rule, it is muted. The more common sentiment among bloggers seems to be that the decision foreshadows the death of the exclusionary rule. As Tony Mauro explains at Legal Times, Justice Antonin Scalia's majority opinion did not repeal the knock-and-announce rule, but "said the traditional remedy for police violation of the rule -- namely, barring the use at trial of the evidence found -- is no longer required."

In his analysis of the ruling at SCOTUSblog, Lyle Denniston says the case "raises significant new questions about how sturdy the 'exclusionary rule' is as a remedy for constitutional violations by police" and suggests "new doubt about the continuing validity of the 'knock-and-announce' rule." Scalia's reasoning, Denniston says, poses "questions about how far the decision may ultimately reach, or what future changes in constitutional doctrine it may portend." He notes, however, that Justice Anthony M. Kennedy, in a separate opinion, states, "[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt."

Even with Justice Kennedy's separate opinion, Norm Pattis at Crime & Federalism is anything but reassured. He contends that the decision will have implications for civil as well as criminal cases, undermining civil rights actions based on unreasonable searches. Pattis writes:

"The Fourth Amendment is evaporating before our very eyes. Where once the Court ... concluded that it was far better that ten guilty men go free than one innocent man be convicted, today the Court reasons from a position of fear: Let's not get hung up on technicalities in the war on crime and terror, seems to the new ethos."

As Howard Bashman reports, editorials in several major newspapers denounced the decision. The New York Times says that the ruling "substantially diminished Americans' right to privacy in their own homes." The Los Angeles Times argues that the court "needlessly gutted a venerable protection for personal privacy." The blog TalkLeft contends that, thanks to the decision, "the police have little incentive to obey the constitutional requirement to knock and announce their presence before busting down doors." And Federal Criminal Appeal says that close examination of the majority, concurring and dissenting opinions reveals "just how big a threat this ruling poses for individuals and how great a boon for law enforcement officers."

In fact, it is hard to find a blogger who supports the decision. Even the conservative law professor Glenn Reynolds, at Instapundit, calls the decision "defensible legally, but not morally." He writes:

"That is, it's not much of a stretch from the existing caselaw, but it produces a rule that seems inconsistent with the original meaning of the constitution, and common sense."

Perhaps Justice Breyer, in his eloquent dissent, best sums up what many seem to be saying about the case:

"Today’s opinion is thus doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution's knock-and-announce protection."

June 16, 2006 | Permalink | Comments (8)

June 15, 2006

Xerox-Amici Deal: Boies Family Boon?

The Law Blog's Peter Lattman takes note of the Xerox-Amici deal for $174 million, pointing out that the interesting part is really the stake in Amici held by David Boies' family.

"Boies and his law firm Boies, Schiller & Flexner drew criticism for steering clients to Amici without disclosing that four of his children owned an indirect stake in the company," writes Lattman, citing recent news reports in the WSJ.

Read further here.

June 15, 2006 | Permalink | Comments (0)

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