Laughing at BigLawyers
If you'd like a daily bit of humor from the BigLaw trenches, head over to The Disassociate, a relatively new blog whose author describes it as:
one associate's attempt to see the humor, to focus on the lighter side, to find the fun. Somewhere along the way...repaying student loans, billing hours, monitoring salaries, many of us lost the sense of enjoyment, not about the law, but within the profession. Every day is funny, we just need to stop and think about it. I'll try to do that, but feel free to help. And just to be clear, I like working at my firm - I am just trying to get the fun back. Thanks for coming by.
Posts at “The Disassociate” are generally very short (usually one sentence) and generally worth at least a chuckle. One of my favorites is entitled “Crying out of the law” and reads:
See? I told you it was funny. And in view of the upcoming graduation season, check out “Pomp & Circumstance”:
Ah yes. The golden future that awaits so many of us.... I hope to never concern myself with billing hours, but otherwise....
Anyway, if you're ever looking for a bit of law-related laughter, The Disassociate might be a good place to start.
Employment law question: Are you scary?
Is it legal for an employer, during a phone interview, to ask an applicant: “We work with the public. Is there anything about your physical appearance that might make people uncomfortable?”
I have never been asked this in an interview, but people I know have. I vaguely recall something from my employment law class about employers having the right to set reasonable rules for the appearance of employees who work w/the public, but this seems pretty close to the line. Any thoughts?
Posted 12:43 PM | Comments (8) | TrackBack
Habeas Schmaebeas?
I just heard the 3/10/06 episode of This American Life and I urge you to find some way to hear this program. It's episode 310, it's called “Habeas Schmabeas,” and it provides a horrifying summary of what the Bush administration has done by creating “enemy combatants,” declaring them outside the reach of the Geneva Conventions, and locking them away indefinitely in Guantanamo where they can be tortured at will. The show is great because it puts these acts in their appropriate context and reminds us, as U.S. citizens and voters, that we are responsible for this.
It's sickening, really. The other day Dave! praised Molly Ivins for articulating his utter frustration with the Democratic party. I'm with both of them, and agree wholeheartedly with Ivins that “it is time for a candidate who takes clear stands and kicks ass.” One of those stands must be against the whole idea of “enemy combatants” and the train of evils that has followed in its wake. I want a candidate for President in 2008 who will, immediately after taking office, grant full habeas proceedings to all prisoners in Guantanamo, who will forbid the U.S. military from declaring anyone an “enemy combatant,” and who will make clear the the Geneva Conventions apply to all prisoners of war (including those formerly known as “enemy combatants”).
What point have we reached that we can allow these things to go on in our names?
MeFi's Advice to the Unhappy Young Attorney (and a note on Blawg Wisdom)
The question goes on to give more background and context, then concludes with:
Hmm. Lots of responses, although no silver bullets. I just thought some of you might find it interesting. Or not.
This would be perfect for Blawg Wisdom, but if you haven't noticed, I haven't really been keeping up with that. I apologize to the handful of you who have submitted Requests for Wisdom in the past couple of months. I'm not ignoring you, but, well... I guess the thrill has kind of gone out of the project. It hasn't become as useful or as active as I'd hoped, which might be because there's really not much of a need for the service it provides.
So what do you think? Should we put Blawg Wisdom out of its misery, just leave it as is for the sake of posterity, or attempt to hand over site management to some young whippersnapper with the time, energy, and inclination to keep it up?
Posted 10:13 PM | Comments (7) | TrackBack
The Rule Of Law?
In his first day of confirmation hearings for a lifetime appointment to the U.S. Supreme Court, Judge Samuel Alito said :
Hm. No agenda, huh? The rule of law? What the heck does that mean? Take President's domestic spying, for example; is it legal? To answer the question, we have to figure out what law applies and what that law means. So is this the law that applies to Bush's domestic spying? If so, it's illegal. Or is this the law that applies? If so, it might be legal. In other words, with this and many many other issues, saying that a judge's only obligation is to the rule of law is the same as saying that a judge's only obligation is to his own values, experience, and preferences of interpretation.
A judge can't have any agenda? Poppycock. Judges are human, humans have agendas, and Alito—like Roberts before him—is more dangerous for the fact that he either doesn't recognize this or has chosen to lie about it.
Posted 08:40 AM | Comments (3) | TrackBack
Welcome (and Welcome To) Wex
Have you seen the new Wikipedia-like legal resource? It's called Wex and it's part of the awesome LII.
Sounds terrific. They're seeking qualified contributors to help build the resource, so if you'd like to help and you're qualified, go to it!
Political Theater At Its Worst
While trying to move as little as possible as I recover from the marathon, I've been listening to almost non-stop radio coverage of the nomination of Samuel A. Alito to replace Sandra Day O'Connor on the Supreme Court. I don't know if I've ever heard such a farce. On the left pundits are saying “There's going to be a huge fight; he's a right wing wacko.” On the right, pundits are saying “I don't think there's going to be much opposition; once people get to know him they'll see he's a great guy and they will support him.” I don't believe either side is saying what they think is true. Instead, both sides are taking extreme positions in an effort to shape public opinion. I guess this is how politics works these days: You never hear real opinions and rarely hear many facts; instead, you hear spin. This isn't new; it's just rare that you see it so clearly.
That said, the spin is revealing in itself. The left is arguing from the facts of Alito's long record that he's an extreme Right nominee, while the Right is arguing from nothing more than “he's a really good guy” that he should be unobjectionable. If you had the choice, would you pick a judge based on a concrete record, or would you pick based on whether you thought he was a good guy?
Oh, the Right is also arguing that Alito is “just like Roberts” because Roberts supposedly set such a high standard and everyone loved him. Of course, Alito might turn out to be just like Roberts in terms of how the two would rule in any given case, but we can't know that because we still don't really know how Roberts is going to rule. Roberts turned out to be unobjectionable because he had such a thin record; that's not the case with Alito.
What is certain is that Alito will add nothing to the diversity of the court in terms of background, gender, race, ethnicity, philosophy, experience, etc.
Happy Halloween, everybody. Are you scared enough yet?
Posted 04:08 PM | Comments (2) | TrackBack
Miers Withdraws Herself
NPR is reporting that Harriet Miers withdrew herself from the nomination process for the Supreme Court. I can't find anything online yet, but it should be up in a few minutes.
UPDATE 9:11 a.m.: Ok, the news is confirmed here.
UPDATE 10:45 a.m.: “Harriet Miers” has blackened “her” blog in morning over “her” withdrawal.
More important, check out the posts over at TG's Political Wire on this today. Check out this progression of stories:
- Reports that the White House was planning to deflect attention away from the indictments that are almost certainly coming from Plamegate.
- Reports that the Miers nomination is seriously going to decrease contributions to the Republican party.
- A quote arguing that the Christian right has taken over the Republican party. (Note that Christian conservatives were leading the fight against Miers.)
- And finally, Miers withdraws.
Note that even Miers' letter of withdrawal shows how inappropriate she was for the Supreme Court:
Even as a nominee for the Supreme Court she still speaks of the White House as something she's a part of. And they were trying to tell us she'd be able to separate herself from that on the bench. Right.
I heard someone argue recently that the Yubbledewers never intended Miers to be confirmed; rather, they nominated her knowing she'd fail but knowing also that no one could live up to the standard set by John Roberts. Therefore, the strategy was to put up someone really bad, so that whoever they put up next will seem that much better and people will care less that the next nominee just isn't up to the Roberts level. I disagree that Roberts set such a high bar, although it's funny how much better Roberts looks compared to Miers. Perhaps that was the strategy: Nominate someone totally not qualified just to etch more deeply the impression that Roberts really is qualified.
Ok, I'll stop w/the baseless speculation. This news speaks for itself in enough ways you won't need my rants to put it into context. Although I will say one more cynical thing: Brace yourself because if you thought Miers was bad I'm betting you ain't seen nuthin' yet.
Posted 09:02 AM | Comments (2) | TrackBack
Breyer's Active Liberty
NPR today features an interview w/Supreme Court Justice Stephen Breyer about his new book, Active Liberty : Interpreting Our Democratic Constitution. The bits played on Morning Edition suggest that, although conservatives have been the ones to most vehemently denounce “judicial activism” and the evils of “legislating from the bench,” the conservative justices (primarily Thomas) have been the ones most likely to invalidate laws passed by Congress, while Breyer is the justice least likely to do so. (ACS Blog has the details of that study.) So I guess those who condemn judicial activists are really condemning Scalia and Thomas, huh? Yeah, right.
The full, hour-long interview w/Breyer is available for streaming, but the following are some highlights from my listen:
Breyer defines “active liberty” as a distinction between freedom guaranteed by law from the government (freedom of speech is freedom from gov't action to restrict speech), and another, more ancient concept, that citizens of a community will share legitimate authority in that community. He traces this latter idea back to the Greeks. The notion today is that each individual shares the power of authority—it's called democracy. He wants to stress “active liberty” because that democracy only works if the average citizen participates.
The judiciary's role is to recognize the importance of active liberty and to understand that the Constitution wants to create a set of institutions to enable people to decide things democratically. When deciding conflicts between majority and minority interests he says we should return to fundamental principles of democracy. So in the Michigan affirmative action case, Breyer argues that all the amici briefs from the business community, the military, educational institutions, etc., showed that the people wanted the diversity that affirmative action provides, so upholding the constitution was consistent with democratic principles. In other words, he's a big believer in majoritarian rule.
On campaign finance laws, he argues that there are speech interests on both sides of spending restrictions, but the laws have the objective of leveling the playing field to make more equal exchange possible. The first amendment exists in order to allow people to elect the kind of government they want, and certain forms of regulation are necessary to promote that kind of conversation.
Speaking of campaign finance laws, I recently and somewhat foolishly entered the debate on this issue over at Althouse and basically got schooled by Stealth Law Prof who, like Althouse, disagrees w/Breyer on this point. I still maintain that conflating dollars and political contributions with speech is dangerous and antithetical to the democratic process b/c it inherently privileges those w/the most money and we should do what we can to prevent that. But I'm not prepared to defend that position against conlaw profs so I'll have to leave it there.
Anyhoo, the Breyer interview is interesting, but disappointing b/c his explanation of his philosophy does not seem as rigorous or clear as I was hoping. Perhaps the book makes it more clear, or perhaps he is really just as deluded about what he's doing as Scalia is w/the difference being that I tend to agree more w/the outcomes of his delusions than I do w/the outcomes of Scalia's delusions.
That said, how cool is it that we can all listen to this complete interview whenever we want? Before the internet, all we could have had was the 5-minute radio version and we would have had to listen when the radio station chose to broadcast it. Now, we can listen to that 5-minute bit whenever we want, and we can listen to the full interview whenever we want, and that is just very cool.
Posted 10:13 AM | Comments (2) | TrackBack
Blawg Review #25
Welcome to Blawg Review #25, the Protest Edition! Since “the largest show of antiwar sentiment in the nation's capital since the conflict in Iraq began” was just last Saturday, I've been thinking a bit about “protest” as both a way of life and a mode of expression. I realized that, whether they're protesting for themselves or on behalf of others, lawyers are almost always protesting something—that's their job. Isn't every lawsuit a form of protest against something or someone? Today's Review will highlight a wide variety of such protests that appeared in the blawgosphere in the last week and will feature a selection of images from the Sept. 24th peace march in D.C. But before diving into all the protests I want to invite you to check out some great new blawgs—they're popping up all over the place! Give a hearty welcome and read to:
- bk!: The blog of Brandy Karl, f.k.a. “alice” of A Mad Tea-Party. Thanks to Bag and Baggage for the tip! I'm sure anyone who used to read and enjoy the Tea-Party on a regular basis will agree that it's great to see Brandy/Alice blogging again. Unfortunately, just as we discover Brandy's new identity and home—as well as the fact that she's a happy lawyer!—we must also extend our sympathies as she copes with a death in the family.
- Blackprof.com, a new blawg by nine prominent black law professors. I've had the good fortune to be able to work with Professors Spencer Overton and Paul Butler in setting up and designing this new blawg and it's been great to see it take off and start generating hits and great discussions. Check it out for lots of insight into critical right-to-vote issues, law school diversity, the difficulty Americans seem to have in talking about the racial implications of hurricane Katrina, and much more.
- The Clerkship Notification Blog, a group site whose goal is to distribute information about the clerkship notification processs. This will only be a useful resource if lots of law students participate so the blawg's author has asked for help to get the word out about the site. And if you're a law student who has applied for a clerkship, be sure to visit and leave any information you know.
- Law Spouses, a new “blog community for those who love a law student.” This blog's author aims to create a resources for spouses, boyfriends, girlfriends, friends, etc., of law students to help them deal w/the challenges that arise when their loved ones give their lives to law school. If you're a spouse or partner or other loved one of a law student and you'd like to become a contributor at Law Spouses, get thee to the comments and let the author know!
Protest This!
Starting us off, Timothy Sandefur at Positive Liberty is protesting the hypocrisy of U.S. drug laws via this Slate article discussing William Rehnquist's alleged addiction to sedatives. Sandefur writes:
Speaking of white collar crime (and can you get much more white collar than the Chief Justice?), last week Professor Bainbridge invited protests both for and against white-collar crime sentencing policy when he asked, “As a matter of sound sentencing policy, should first offender white collar criminals serve their sentences in a maximum security prison?” The question prompted a lively discussion, both on the professor's blawg and on Crime and Federalism, where Mike asked, “Why are white collar sentences so long?” He says it's because otherwise these crooks would go unpunished:
The Stopped Clock riffs on a similar theme, protesting that problems in criminal justice go unresolved because we figure criminal defendants are “probably guilty of something anyway.” And we call this justice?
Our discussion of white collar crime would hardly be complete without input from the White Collar Crime Prof Blog, so check out that blog's analysis of the “CSI effect” on white collar prosecutions.
Moving from theory about white collar crime to its real practice in the wild, Professor Bainbridge also notes that Bill Frist is being accused of insider trading (followup here). And in the news we see that the Jack Abramoff lobbying scandal is has reached the White House. Lock up the crooks!
Over at Wordlab, Abnu protests that a couple of lawyers have filed a trademark application for the word “Katrina”:
PHOSITA also reports on other Katrina-related trademark applications and provides the first connection I've seen between that storm and a certain 1980s pop-band.
In other Katrina-related news, J. Craig Williams of May it Please the Court® fame wonders whether insurers are going to get a pass on paying storm-related claims. The answer is all tort-o-rific and depends on proximate, concurrent, and principal cause. But hey, if you don't want to read about it, you can just sit back and listen because Williams kindly records most of his posts as podcasts. Where does he find the time?
Colin Samuels at Infamy or Praise protests a law suit by the Mississippi attorney general against five insurers “to force those insurers to pay flood damages suffered by their Mississippi policy holders despite clear exclusions in those policies and the ready availability of flood coverage from federal programs.” Samuels calls this a brazen and irrational encroachment on freedom of contract. And he's not alone; as Jonathan B. Wilson notes, Walter Olson doesn't like this lawsuit either. Be sure to read Wilson's post to see “what really chaps Olson's briefcase.”
Katrina has also prompted Evan Schaeffer and Dennis Kennedy to ponder how such a devastating storm might affect e-discovery. Schaeffer also notes that trial lawyers cause hurricanes. Gee whiz; all this time I thought money was the root of all evil...
But Katrina played second fiddle last week to its little sister, Rita. Before Rita hit, Ernie the Attorney—who lived through Katrina in New Orleans—offered tips for evacuees. One recommendation was to have plenty of “calming agents like wine” on hand; better yet, you could just evacuate to a vineyard. Tom Kirkendall at Houston's Clear Thinkers expected that the economic effects of Rita would be huge. However, when the storm wasn't as devastating as predicted, he revised those expectations. Check out the posts in between for more on the storm, including some interesting thoughts on the chaotic evacuation of Houston. Beldar Blog also updated frequently on Rita's progress, including great posts on the evacuation gridlock, a nearly hour-by-hour update of living through the storm, and observations on the aftermath.
Back to political protests, the gentlemen at the Power Line blog are protesting the fact that Yubbledew President Bush recently appointed someone who was foolish enough to admit she doesn't know everything to a position in the DHS. The post wins this week's award for best title with: “Stuck on Stupid, and Not Too Brite.” Are they talking about their president, or....?
Continuing the “stuck on stupid” theme, Retired Army JAG Officer suggests that Democrats are exactly that. Al Nye The Lawyer Guy doesn't use the exact phrase, but it seems applicable to some of these crazy quotes from consumers and creditors.
But not everyone was stuck on stupid last week. 
Professor Tung Yin used the mid-season cliffhanger of Battlestar Gallactica (BSG to those of us who are addicted to this, the best show on tv possibly evar!) to protest torture as a tool of interrogation.
Norm Pattis at Crime and Federalism protested some of the stupid questions senators asked John Roberts last week.
Monica Bay at The Common Scold managed to get quoted and pictured in the NY Times for her protest against spotty cell phone reception in rural areas.
Professor Althouse protested the cancellation of The Comeback, the Lisa Kudrow show on HBO. The good professor has also begun podcasting, joining Professor Gordon Smith of the Office Hour Podcast on the Wisconsin Law Prof podcast team. Come on you other law profs, it's time to step up to the mic!
At Between Lawyers, Dennis Kennedy responds to a critique of the “non-commercial use only” Creative Commons licenses. Kennedy asks: “What do you really intend 'non-commercial use' to mean?” Personally I intend it to mean something like “quit being a greedy capitalist pig!” but I welcome Kennedy's call for the Creative Commons to “take a stronger leadership role in providing interpretations of the license provisions.”
Reporting Protests
When lawyers aren't protesting anything themselves, they frequently excel at reporting on and analyzing the protests of others. For example, Andrew Raff is in this reporting mode at the IPTAblog where he presents an exhaustive roundup of the Author's Guild's lawsuit to prohibit Google from scanning copyrighted books without obtaining permissions from the copyright owners. The gist seems to be that a majority of commentators think Google's “fair use” claim will win the day, but read the full post for much more.
Also in the reporting mode, Paul L. Caron at Tax Prawf Blog notes that Harvard has changed course and is allowing military recruiters on campus in order to make sure the school maintains access to federal funds. However, Harvard is continuing its protest in a different form:
Todd Zywicki comments on this at the Volokh Conspiracy, as well. Hey, maybe if Congress didn't support sending U.S. troops to die in unjustified wars of aggression it wouldn't see so much opposition to the military's recruitment efforts. Of course, there's also that completely discriminatory and irrational “don't ask, don't tell” policy the military maintains, so there's quite a bit for Harvard and other schools to protest, actually.
But speaking of the Volokh Conspiracy, Orin Kerr reports that the new war on porn is “a running joke” at the FBI. Protest at the FBI by agents? That's a good one.
They already gave at home, indeed.
Robert Ambrogi reports on the boatloads of cash NY lawyers take home, and since he's not really protesting, let me fill that gap: Judge Judy makes $30 million/year!? She's awful! Am I the only one that finds that not only shockingly ridiculous, but morally offensive, as well? Oh, and while we're at it, why do public defenders make less than prosecutors?
From money to sports (a pretty natural jump, don't you think?) Mark at the SportsBiz blog reports that several college football players have sued the NCAA “alleging that the NCAA's scholarship limitations are an illegal restraint of trade adopted in the name of cost containment by an organization that illegally monopolizes 'big time' college football.”
And in one other sports-related post, Richard Radcliffe of the Law Religion Culture Review notes that O.J. Simpson continues to have a talent for generating lawsuits. It's good to be good at something, you know?
Implicit Protests
Lots of blawg posts fall into the category of implicit protests against something or other (or, perhaps I should say that a determined blawg reviewer can force them inside that box). David Swanner of the South Carolina Trial Law Blog files such an implicit protest against poor law office management with his keys to a smoothly running law office. It's all about having a plan for cases, finances, marketing, business, and life. So what's your plan, man?
Jim Calloway's Law Practice Tips Blog joins Swanner by offering tips for using desktop search tools. Calloway also covers the interesting bits from the ABA's Legal Technology Survey. Only 19% of responding lawyers have used a wireless internet connection? If my own school is any indication, that number is going to skyrocket when the class of 2006 enters practice; just about every law student at GW uses wifi every day!
And speaking of law school, in an implicit protest against unhappiness in the legal profession, Jeremy Blachman recently called for feedback from law students about their perspectives on working in the legal profession. He writes:
Since he doesn't have comments on his blawg, Jeremy has been publishing some of the emails he's received. In chronological order, here's what he's got so far: post one, post two, post three, post four, post five, post six, post seven, post eight, post nine. There's a treasure trove of interesting perspectives there, so dig in.
One theme of those posts is the varying level of satisfaction with working as a legal professional, but there is more than one way to find happiness in the field. Just ask Dave Johnston, who left law school a few years ago and is now the chief blogger (or “Internet Content Manager”) at the Cato Institute in D.C. And if you decide you do want to be a lawyer rather than just working in a law-related position, yet you don't really dig law school, fear not! Who says a lawyer needs law school? Not me, that's fersure! As those of you who read the imbroglio regularly already know, getting rid of or generally improving law school is one of my favorite topics. Therefore, it was with relish that I noted several recent discussions about whether the third year of law school is really necessary, including this great summary post from Andrew Raff.
Oh, and if you're moving on from law school and looking for a job with a firm, rethink(ip) reminds you to be sure and ask your potential employer two important questions: “Who are your clients? Who are your best clients?”
- - - - -
Well, that's it for this little protest review. Blawg Review has information about next week's host, and instructions for getting your blawg posts included in upcoming issues.
From time to time, the Editor of Blawg Review also posts reviews of law blogs, sometimes republishing a review. Last week, there was a lengthy review of Crime & Federalism originally published by Mark Draughn. If you've seen a good review of a law blog, or would like to write one
for Blawg Review, please contact the Editor.
Posted 07:46 AM | Comments (3) | TrackBack
The Rehnquist Conspiracy
Since the end of the Supreme Court term I've been trying to figure out why Chief Justice Rehnquist has not stepped down from the Court. His health is poor and if I were him, I'd really want to spend a few years of my life doing something other than sitting on the bench. Then, when O'Connor retired, I figured, well, Rehnquist can't be far behind. Yet there he sits, unmoved.
Why could that be? What could he be thinking? Here's a theory: Rehnquist knows he should step down and may even wish he could. However, he also knew long before the rest of us that O'Connor was ready to go so he decided to hold on for at least one more term (if he can). He knew that if he stepped down and Bush appointed someone like him (which Bush would have done), the balance on the Court would not have changed. However, now that O'Connor is gone and Bush has nominated someone much more likely to agree with Rehnquist than O'Connor ever was, Rehnquist can stay in the hope that if he gets at least one full term with a solid right wing majority behind him he can really get U.S. law headed in the, um, right direction again.
And whether Rehnquist has thought any of these things is irrelevant. It looks like that's what's going to happen, regardless. Listening to NPR recently (Justice Talking—the show is available for download ) I heard Nadine Strossen of the ACLU say that O'Connor's replacement will effectively have the power to amend the constitution. I guess I hadn't thought of it that way, but yeah, that's how important this nomination is. Heaven help us.
Posted 06:51 AM | Comments (5) | TrackBack
Crap, Sandra D, Crap!
- Look at me!
I'm Sandra D!
And I can retire!
Hee hee hee! - I'm Sandra Day O'Connor.
You can call me “Your Honor.”
From the Court I'm a goner.
Neener neener nonner!
Lost Liberty Hotel
You've probably heard about this, but just in case you haven't, you better hurry if you want to be among the first to reserve a spot at the Lost Liberty Hotel.
Very smart. As I said before, I also disagree with the holding in Kelo, but I suspect I also disagree with most of the goals and values of its most outspoken critics. Do most of the people mocking the decision really care that it allows the government to take from the poor to give to the rich, or do they only care that it allows the government to take?
Caveman review of Kelo: Taking good. Taking to give to rich bad. Grrr.
Death Not Worth Discussion?
Amidst all the hullaballoo about Grokster and the ten commandments cases and Kelo v. New London, no one seems to be talking about Bell v. Thompson. You can see from this brief discussion that it was an insanely complicated case, procedurally speaking, but let me see if I can simplify it: Thompson was sentenced to death, he lost his state-level appeal, he filed a habeas petition in federal court and it was dismissed and the Sixth Circuit affirmed the dismissal. Thompson then filed for cert. with the Supreme Court and was denied, and finally he filed another habeas petition. Sometime after the Sixth Circuit dismissed the first habeas, it found new evidence that convinced the court it had made a mistake, so the Sixth Circuit tried to change its previous decision to correct its mistake. The Supreme Court said no, you can't do that. Kill him!
To put it even more simply: The Supreme Court said in America we don't care if we screw up and kill people by mistake.
Awesome, huh?
This decision is outrageous, but no more so than the fact that intellectual property or ten commandments issues seem to be more important to Americans than their own complicity in state-sponsored killing. Priorities? Not so much. Oh, and you know those people who care so much about the ten commandments? I'm pretty sure one of them says something about not killing.
Funny, for some strange reason the chorus of this song just popped into my head.
All Eyes on SCOTUS (Blog) for 10 Cs and Grokster
Today is the big final day of this term for the Supreme Court of the United States (SCOTUS), and with such huge decisions coming down today there's no better page to refresh in your browser than the SCOTUS Blog. To get ready, here's a preview of the decisions coming down today.
The first note on one of the Ten Commandments cases is up:
Splitting 5-4 in the first of two rulings on government displays of the Ten Commandments, the Supreme Court on Monday upheld a federal court order against a display of the religious document on the wall of a courthouse in Kentucky.
Grokster will come soon, I'm sure...
UPDATE: Grokster loses big:
Crap.
UPDATE II: Now that the term is over, Half-Cocked is handicapping the retirements.
Also, from the ongoing discussion it looks like maybe this wasn't necessarily a huge defeat for Grokster. The Court merely remanded for reconsideration of what was previously summary judgment in Grokster/Streamcast's favor.
Lawyers, Knowledge Management, and OPML
If you've ever worked in a law office, you might be familiar with a common problem: Lawyers often do similar things over and over again, but they don't always have a very good way to keep track of what they've done before so they can efficiently reuse that work the next time they need it. For example, if you're a criminal lawyer, you're going to write a lot of motions to suppress evidence. How do you keep track of the work you've done on those motions to suppress so that you don't have to do it all over again the next time you have a related issue?
Another problem in law offices is collaboration. If you're working a case with other attorneys, paralegals, interns, etc., how do you keep everyone updated on what you've done, and how do you follow what others have done?
I believe this is what some people call “knowledge management”—how do you “manage” the knowledge in your firm? And I understand that there are lots of commercial packages available that attempt to help lawyers with these tasks. Many are built around an hourly billing model and are very complicated. For example, the GW clinics use Amicus “practice management software.” I found it to be slow, inflexible (you work the program's way or no way at all), hard for users to use and understand, and really too complex for what we wanted to do.
So what if you want something simpler—something without all the billing and client tracking features, something that just helps you keep track of your research and your collaboration with others? Enter OPML and Instant Outlining.
If you don't read Scripting News I'm not sure why you would know or care about this, but Dave Winer has been building a new OPML editor, a sort of outliner on steroids that allows you to create what he's calling “instant outlines,” or outlines that people can subscribe to—almost in the same way that you can subscribe to RSS feeds.* I can't describe it much better than that because I haven't seen or used it, but from what I've read, it sounds like it could be a really awesome way for people in a law office to communicate about the cases they're working on.
To see what I'm talking about, read this thread describing how the outliner can work into a collaborative workflow. And here's another description of the outliner at work and some thoughts about how it compares to email, instant messaging, and other means of communication. With those descriptions in mind, imagine that you're an attorney in the lead on a murder trial. You've got two attorneys helping you out, and all three of you have interns doing research and investigation for you. Plus you have an investigator and a paralegal helping out with the case. How do you keep all of them informed about what's going on? Why not use an outliner to keep your notes and let them all subscribe? They can keep their own outlines so you can follow what they're all doing. This would mean you wouldn't have to repeat new news six times, and you could probably have fewer long meetings where everyone reports on what they're doing. I've only worked on a couple of cases like this, but in those cases, I really think instant outlining could have been a big help. Another big advantage is that it keeps time-stamped records of the case as it develops so it would be easy to go back through and see what you learned when and all of that should make it less likely that you'll lose or overlook any little aspect of the case.
In addition to its collaboration possibilities via instant outlining, this new outliner promises to be a great way to track legal research within a firm or legal office. Take those motions to suppress, for example. Every lawyer in your office could have a “motions to suppress” outline; when you needed to write such a motion, you could check in on those outlines and gather all the relevant research that people in your office have already done. In addition or in the alternative, the office could maintain one “motions to suppress” outline to which everyone could add. It could live on the office server so that everyone could access and update it. The top level nodes of these outlines could state a sub-issue related to suppressing evidence, and the subnodes could collect the relevant cites and points of law to deal with that issue. Then, the next time you have to do a motion to suppress, you scan through the outline for related issues and jump right to the research. If you find anything new about that issue, you add it to the outline.
Finally, this mythical outliner (which is still just in beta testing, apparently) can also be a blogging tool. I've long been jealous of the way Scripting News can combine little one-line posts w/longer, multi-paragraph posts -- each with its own permalink. Now the tool used to create that sort of blog is going to be available for everyone (or at least to all Windows users; maybe Mac users soon). This won't necessarily be great for lawyers or knowledge management or whatever, but it's certainly interesting.
* OPML is the format most feed aggregators use to keep track of your RSS subscriptions, and it's also the format used by outliners like Omni Outliner or Aquaminds NoteTaker. Its great virtue as far as I can tell is the ability to expand and collapse different levels of your outline, and to move those levels around easily so you can organize and navigate through a lot of information quickly and easily. I've found it to be a great format for taking notes in law school.
Posted 12:51 PM | Comments (2) | TrackBack
Kelo v. New London
Because I can't resist throwing in my two cents: When I first learned yesterday that the Supreme Court said it's ok for the government to take private property from small, individual owners and give it to large, conglomerate owners so that those big owners can make tons of money from it, I was honestly a little conflicted.
On one hand, I'm happy to see the government exercise its takings powers for the public good. We take private property to an insane extreme in the U.S., and I like the government's takings powers because, theoretically, they put the public good over private profit in a very blunt and inescapable way.
That said, this decision is deeply offensive because it appears to turn that spirit of the takings clause and turn it against itself in a very perverse way. In short, Kelo basically builds trickle-down economics into the law of takings, and if you grew up in the 1980s under Reagan's “voodoo economics” (which is what George H.W. Bush called it) you'll know what that means: They're pissing on us! Or if you prefer another metaphor, the Supreme Court has said (once again) it's ok for government to give all the cake to those who already have the largest portions and we'll just hope that everyone else can survive on the crumbs that fall.
Awesome.
Ahem. If you'd like more erudite and measured discussion of the decision. don't miss the SCOTUSblog's metablog on Kelo. The decision itself is here from the LII.
And speaking of the LII, it is currently seeking donations. As far as I know, the LII was the first to have the Kelo decision available online, and that's just one of the invaluable services the LII provides. In the let-them-eat-cake economy of legal research, the LII is one way to make sure we get more than just crumbs, so please do your part to keep it healthy.
Posted 07:00 AM | Comments (3) | TrackBack
Wexis and the Sheeps
Reader “Charlie” recently left a lengthy comment on a post from nearly two years ago in which I complained about how Lexis and Westlaw get special opportunities at law schools to get law students hooked on their services from the beginning of their legal careers. Charlie says I'm stupid and lack business experience and just plain wrong—and more! He suggests I do some research before posting “stupid statements about something you know little or nothing about.”
I guess Charlie doesn't know that I actually have done quite a bit of research into this topic. He and others like him might be interested in some of that research, such as this 1994 article from Wired magazine explaining how West essentially stole a public database and took it private—with the implicit cooperation and approval of the DOJ, of course. Some might say West has earned its preeminent position in the online legal research market; others might say West just took it.
This page links to the 2nd Circuit cases in which West attempted—unsuccessfully—to claim it owned (and could control via copyright) the page numbers on which cases and other legal materials are printed. What you don't see there are the 8th Circuit cases that said West could copyright its page numbers. See e.g. Oasis Publishing Co. v. West Publishing Co., 924 F. Supp. 918, 39 U.S.P.Q. 2D (BNA) 1271 (D. Minn., 1996). According to my research, this split between the 2nd and 8th Circuits has not really been decided because the dispute was ended by a consent decree before it could be resolved by the Supreme Court; that decree ordered West to allow competitors to license its page numbers for a stipulated fee. U.S. v. Thomson, 1997 U.S. Dist. LEXIS 2790; 1997-1 Trade Cas. (CCH) P71,75.
But while I have done some research into this issue, that doesn't mean I know it all and I'm always interested in learning more or to be corrected where I've made a mistake. To that end, I figured readers like Charlie might enjoy more of my stupidity about Wexis, so here are more posts in which I mention Wexis and its antisocial effects on society and the legal profession:
- The ABA Is Broken (8/12/03)
- Procrastination (links to discussions of the topic elsewhere; 10/04/03)
- Week In Review #1 (5/24/04)
- Five Things (6/24/04)
- Wexis Data, Anyone? (2/26/05)
- Wexis the Pusher (2/28/05)
(And, of course, I say that knowing full well that I'm a sheep too and it's only my illusion that I could be otherwise since, as L. is fond of saying, power is everywhere intentional and nonsubjective. Also, as I am often reminded, there is no Zion outside the matrix.)
Posted 06:13 AM | Comments (4) | TrackBack
Scalia Is Politicizing the Judiciary
Listening to NPR I just heard a clip from an interview with Justices Breyer, O'Connor, and Scalia yesterday at the National Archives. One of the things the Justices discussed was the way courts and judges have been criticized recently (especially from the political Right) and Breyer said, more or less: “It's always been this way. Judges make tough choices and some people are always going to be unhappy with those choices, but that's all fine so long as everyone follows the rule of law.” That's the standard answer.
However, Scalia couldn't pass up the opportunity to “play politics” (as Republicans are fond of saying) with the question. I haven't found the full text of what he said anywhere online, but in the clip NPR played Scalia said something like this: “If you take the position that the Constitution is a living document that the Court will interpret anew for each generation you make the Court a very political body and people will rise up against that.” (You've got to see his actual words; they're much better than that.)
Again I say: Whatever, Nino. Of course, he is clearly correct that people some people do not like the idea of, um, change. But it's disingenuous for Scalia to imply that his “originalist” perspective would generate less animosity toward the Court than would any other perspective. Originalist arguments about Constitutional interpretation are exactly that—arguments about how to interpret words that some white guys wrote a couple of centuries ago. Those words have no immanent meaning that we can “discover” through historical research or any other means (although, obviously, historical research contributes much to our understanding).
Originalists may like to argue otherwise, but again, originalism is just an argument, and therefore it's controversial, and therefore a Court run by originalists would generate just as much animosity as the current Court generates—possibly more. Scalia knows this, which is why it was a dishonest political ploy for him to imply that an originalist Court would resolve current debates about the judiciary. I give him props for being media-savvy enough to promote his agenda at an opportune moment, but it's ironic and a bit hypocritical for him to use a politically loaded claim to criticize the Court for being overly politicized.
Oh, and on the subject of our overly politicized courts, it seems some evangelical Christians want to remove funding from the courts to stop them from making decisions evangelicals don't like. Brilliant, don't you think?
Posted 09:26 AM
Say Hello to Blawg Review!
Blawg Review, the new “carnival of the blawgs,” has just published its very first edition, hosted by Notes from the (Legal) Underground. This inaugural installment features dozens of great posts from lawyers, law students, and law professors, and covers a vast range of topics from cybersquatting to cookie monster to breastfeeding to billable hours—and more. Definitely some great reads there. If you haven't yet heard, Blawg Review is sort of a peer-edited collection of the self-nominated “best” that the blawg world has to offer each week. Or, as George's Employment Blawg put it, Blawg Review is about “making the best of the blawgosphere more accessible and enjoyable to read.” Blawgers nominate their own posts for inclusion (although I suppose you could always nominate someone else's posts, couldn't you?), then the “host” editor decides what to include in each week's review and organizes and presents those posts in whatever way he/she sees fit. The host changes each week, which means the style and emphasis of the review will probably change a little each week, as well. It's a neat idea, and will most definitely be worth checking in on each Monday (especially, ahem, on September 5th for the back-to-school edition, and September 29th for the I-don't-know-what edition). And, as the editors have frequently emphasized, the review will only be as good as the material that gets submitted, so keep that in mind as you post in the future and be sure to forward your best or favorite stuff (or, I suppose, stuff you'd just like to get before a wider audience) to Blawg Review, following the simple submission guidelines. Congratulations to Blawg Review on a great start!Posted 09:17 AM
Washington Lawyer: Do You Blog?
The Washington Lawyer's April cover story is entitled “Do You Blog?” Well, do you? The article was written by Sarah Kellogg and covers everything from the birth of blogs and RSS to the benefits and perils of professionals publishing online. It's a great article, but it would have been even better if it would have provided links to to all of the many blogs it mentions.* In case you'd like to check out the blogs mentioned in the article, they include:- Bag and Baggage by Denise Howell
- CrimLaw by Ken Lammers
- Fourth Amendment by John Wesley Hall, Jr.
- May It Please the Court by J. Craig Williams
- The Blawg Review by Stephanie Tai (not to be confused with, um, Blawg Review
- My Shingle by Carolyn Elefant
- Dennis Kennedy's blog (Kennedy calls Kellogg's article the best article he's read on blawging)
- The Trademark Blog by Martin Schwimmer
- SCOTUSBlog from Goldstein Howe
- Ernie the Attorney by Ernest Svenson
- The Statutory Construction Zone by Gary O’Connor
- Environmental Law Net (which seems to stretch the definition of “blog” a bit, it seems)
- Underneath Their Robes by Article III Groupie
- Blawg Wisdom, which links to content from many law students and legal practitioners
- Reid My Blawg! by Reid Trautz
- And several others that are linked at the end of the piece...
Posted 07:51 AM | Comments (2)
BigLaw Review, Or Why I Stopped Worrying and Learned to Love LittleLaw
Now that the GW journal competition is over (it officially ended at 8 p.m. Monday night), I send my congratulations to those who competed. You probably now know more than most people about sex offender registries and you've produced a small piece of what's probably some very good legal writing. Regardless of what you learn in July about being on a journal, you should feel good about what you've done just by completing the thing. In that spirit, I also wanted to comment on the comments generated by this post from late last week. To summarize, a GW 1L had written asking for advice on the journal competition. I offered my two cents, including a few words about how someone might choose which journals to rank highest in their “preferences” list. Self-described BigLaw senior associate and GW alum David Kaufman wrote in to say:He later clarified a bit and Professor Yin and Energy Spatula added some helpful perspective. What I wanted to add is that this is a perfect example of why BigLaw is so not for me. My experience has been that Duncan Kennedy was absolutely correct when he described legal education as training for hierarchy (in an essay by that name), and this discussion about law review v. other journals v. no journal at all is a perfect example of how that training works. Law school is very good at teaching students to think in high stakes, either/or terms about their career choices. It begins with taking the LSAT and applying for schools, where the conventional wisdom is that you must have the highest scores you can possibly get and you must attend the highest-ranked school to which you can gain admission—otherwise, you might as well not go at all. The training continues in the first year with the myriad competitions where you either win and receive congratulations and accolades, or lose and retreat to your outlines to ponder whether you're really good enough or smart enough or whatever to make it in this racket. And, of course, the training goes on throughout school, with still more competitions, ruthless grading curves, and the constant cycle of interviews and job-seeking that sorts people into the best—and everyone else. Isn't that what the “law review or nothing” mantra means? These lessons of all or nothing hierarchy are drilled into most 0Ls to such an extent that they often make foolish choices and end up in programs that don't fit them as individuals and which do not serve their career goals. But quickly they learn that, whatever goals they may have had when they started applying to law school, the only legitimate goal of any self-respecting law student—nay, the only possible goal if they do not want to live a life of shame and poverty, or worse—is to scrap and scrape for every little “distinction” that will earn them a coveted spot w/in the miserable and too often morally questionable corridors of “BigLaw” where they can help perpetuate the dispiriting cycle for the generations to follow. As I've said before, Kennedy's essay is well worth reading in its entirety, but his comments on the firm hiring process are especially relevant to this point. He writes:
As Energy Spatula pointed out well, it's not only students who are poorly served by the myopic mentality of this legal hierarchy, but the profession itself suffers because BigLaw employers too often hire based merely on the “numbers” and credentials, without looking at the individual characteristics that might make a prospective associate a real asset to the firm. She writes:
This, in turn, damages society because it produces a cadre of professionals who have never learned what it means to be a “counsellor at law” or a guardian of liberty because they've been too busy gunning for the illusory golden ring and making sure everyone who follows in their footsteps has to pay the same exorbitant price they paid for the privilege. It's sad, really, and I want as little to do with it as possible. Of course, I'm absolutely certain that there are happy, well-adjusted, kind and humane people working in BigLaw (I know a few of them); it's not satan's own playground, by any means, and I applaud those who recognize that the system is badly in need of change and are trying to do something about it. Still, evidence abounds that the BigLaw hierarchical model is still going strong at all levels of the legal profession. See, for example, the recent discussion on many blawgs about whether it's necessary to attend a top-10 law school to become a law professor. E.g. Preaching to the Perverted here and here (including links to other voices in that discussion). Again, the brutal hierarchy perpetuates itself. Is there some hope in the news that “Gen Y” lawyers are balking at the hierarchy's demands? Perhaps. At the very least, it's sparked some terrific discussion, including this giant comment thread at the Volokh Conspiracy. (See also: Thoughts from Anthony Rickey.) However, reading around that discussion only adds to my cynicism about BigLaw. First, I agree with this comment that much of this could just be normal generational squabbling; in about 1993 I wrote an article for my college magazine about those slacker Gen-Xers, and now it appears I could write the same thing about Generation Y. Another commenter puts it this way:
That's a great comment because it captures the bitterness and resentment of those who have spent their lives trying to rise in the hierarchy. That bitterness and resentment destroys any empathy these battered practitioners may have once had for those following in their footsteps, leaving them, again, with the pyrrhic satisfaction of being able to make sure their successors pay the same high price they paid for their misery. As Kennedy puts it, “[n]othing could be more natural and, if you've served your time, nothing more fair than to do as you have been done to.” If that's not enough, this discussion also offers little hope that anything is changing because it simply reinforces the fact that the legal “profession” has become nothing more than the pursuit of profit for a large and unfortunately influential swath of practitioners. (See, e.g., this complaint that $120k/year really isn't a very big salary.) Perhaps this is the logical endpoint of the hierarchy—like the proverbial snake it begins to eat its own tail. As Kennedy writes, “[t]raining for subservience is learning for domination as well.” Or perhaps not; perhaps what's at work with these “gen-Y” associates is not that they are becoming “rational actors” in the self-serving sense of pursuing their own profit at any cost, but that they are realizing that there's more to life than billable hours and climbing a ladder that may very well lead only to more rungs. For their sakes, and for the sake of society, I hope so.
Posted 08:05 AM | Comments (5)
Goodbye Juvenile Death Penalty!
The SCOTUS struck down the death penalty for juveniles today in its decision in Roper v. Simmons. A good number of current death row inmates may be affected, plus, this decision may be a great step in the public conversation about the death penalty. More from DPIC. This has got to be great for the National Juvenile Defender Center, too. I haven't read the decision yet, but I can't imagine how this could be a bad thing.Posted 04:18 PM | Comments (3)
Wexis the Pusher
Still working on the “Wexis is Evil” paper and I ran across this great bit from this recent story in the DC Bar magazine:How are those Wexis points treating you today? How snazzy is that new insulated coffee mug? Hey look, did you know you can look up criminal records for people you know? Have another hit, kids, it's all part of the massive inflation of costs in the legal profession, starting with law school and permeating every little inch of the field. Addictive schmaddictive! That's why you're going to take that BigLaw job and sell your soul to the highest bidder, remember?
Posted 02:05 PM | Comments (9)
Wexis Data, Anyone?
Since I know you're all full of knowledge on all kinds of crazy topics, I have another question for you: I'm writing a journal article (due very very soon) that basically argues that Westlaw/Lexis should be freely available to all, both as a matter of copyright law and public policy. (I recognize that this is quixotic, but I think it's worth making the argument, anyway.) Do you know of any anecdotal or statistical evidence that the cost of online legal research is a burden on solo practitioners, legal aid attorneys, or public defenders? I'm especially interested in any evidence that the cost of legal research can actually affect legal outcomes (e.g., cases where a solo or public defender lost a case b/c he/she was outgunned in the research dept.). If you have stories about this kind of thing yourself, or if you know where I could find this kind of information, please let me know. Um, ASAP. ;-) Thanks! p.s.: Also, if you have any thoughts on the topic generally, I'd certainly be interested in hearing those, as well. Do you see any legal or public policy arguments for/against the current scheme of for-profit legal research?Posted 02:44 PM | Comments (6)
Lynn Stewart II
Following up on last week's post about Lynn Stewart: The Legal Ethics Forum has a couple of great posts on the subject. First, Lynn Stewart's Betrayal argues that:Author John Steele goes on to explain what he means, providing great insight into what was at stake in the Stewart trial and what might be its possible ramifications for criminal defense lawyers involved in terrorism/security-related trials. He also offers pointers to some of the key parts of the Stewart trial transcript. Now I only wish I had time to go read them. See also: A first reaction from Alaskablawg in which he says “it appears that this case is not so clear cut and there is reasonable grounds for disagreement about what this means.” For a more pointed perspective, see David Cole's article in The Nation, in which he argues that the Stewart case “case illustrates how out of hand things have gotten in the 'war on terrorism.'” The piece follows what to me looks like the obvious line—what Stewart did violated an agreement, but at worst that's a matter for professional discipline rather than criminal charges carrying possibly decades of prison time. Cole argues that proving otherwise was no easy task, but Ashcroft's DOJ was up to the task:
Cole's conclusion is the best part:
Posted 08:32 AM
“Blawg” & Blawg Republic
I learned yesterday that Denise Howell of Bag and Baggage coined the word “blawg” in the sense of “legal-related blog.” Since I use the word all the time now and made such a big (sort of) deal about it in this article, I wanted to give credit where it's due. I know some people do not find the word helpful, and it becomes less useful if you're speaking rather than writing, but I obviously think it's a great contraction in a web-writing context, so thank you, Denise. And speaking of blawg, have you seen Blawg Republic? Is your blawg listed there? This one isn't, but I'm wondering why Blawg Wisdom is listed under “Law Professors”. I mean, it would be nice if I were a law professor, or if professors wanted to contribute more to the advice on the site, but....Posted 06:24 AM | Comments (3)
Death In Connecticut: Paused
Following up on yesterday's post about Michael Ross: he was not executed last night. His attorney asked for a stay to investigate Ross's competency and whether he is exhibiting “death row syndrome”—whether “years of harsh conditions on death row have coerced Ross to drop his appeals.” More about that in this article:Whatever the merits of “death row syndrome,” this means the first execution in New England in 45 years has been postponed for at least a month (probably much longer), and I'm certainly not sad about that.
Posted 07:23 AM | Comments (8)
Legal Advice and ULP laws
What's the difference between providing information and giving legal advice? If you ask my clinic manual, this is what it will tell you: