Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at esvenson@gmail.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
Between Lawyers' own Denise Howell takes over the editorial reins of the Blawg Review this week with her usual panache and style. Happy Howell-o-ween indeed.
Marty raised the issue of "do you you feel safer now?" in his provocative post yesterday.
For those of you who'd like to think more deeply on this topic and for those wanting to think more carefully about my recent post about corporate bribery and Saddam, I suggest two provocative readings for you. I think they raise important questions.
W. David Stephenson, among others, reports on Davd Rosenbaum's NY Times article report (now part of the NYT's gated content rather than part of the public discussion - does that make sense?)on survey results showing a level of morale at the Department of Homeland Security that is so low as to be almost impossible to believe. The statistic that many newspapers led with is that only 12 percent of the more than 10,000 DHS employees who returned a government questionnaire said they felt strongly that they are "encouraged to come up with new and better ways of doing things."
DHS rates at or near the bottom in many categories among governmental agencies.
Where does DHS rate highest? It places second with 56% of employees strongly agreeing with the statement "The work I do is important." What?!! 44% do not strongly agree with that statement! That may be more disturbing than some of the really low scores.
Secondly, Peggy Noonan has written a distrubing piece in the Wall Street Journal called "A Separate Peace." The subtitle is "America is in trouble--and our elites are merely resigned."
Think about this quote:
I think there is an unspoken subtext in our national political culture right now. In fact I think it's a subtext to our society. I think that a lot of people are carrying around in their heads, unarticulated and even in some cases unnoticed, a sense that the wheels are coming off the trolley and the trolley off the tracks. That in some deep and fundamental way things have broken down and can't be fixed, or won't be fixed any time soon. That our pollsters are preoccupied with "right track" and "wrong track" but missing the number of people who think the answer to "How are things going in America?" is "Off the tracks and hurtling forward, toward an unknown destination."
So, Marty's post seems not so much a provocation, but a reading of a general sense of unease and a call to start asking important questions as if they matter, whether or not they involve legal issues. I know that some of our readers are uncomfortable with the discussion of these kinds of issues on this blog, but I think that the points Noonan raises in the following quote, which does refer to lawyers, are certainly well worth taking some time to raise and discuss:
I suspect that history, including great historical novelists of the future, will look back and see that many of our elites simply decided to enjoy their lives while they waited for the next chapter of trouble. And that they consciously, or unconsciously, took grim comfort in this thought: I got mine. Which is what the separate peace comes down to, "I got mine, you get yours."
You're a lobbyist or a senator or a cabinet chief, you're an editor at a paper or a green-room schmoozer, you're a doctor or lawyer or Indian chief, and you're making your life a little fortress. That's what I think a lot of the elites are up to.
Not all of course. There are a lot of people--I know them and so do you--trying to do work that helps, that will turn it around, that can make it better, that can save lives. They're trying to keep the boat afloat. Or, I should say, get the trolley back on the tracks.
For further reading, you might move on to Barbara Tuchman's book, March of Folly.
My role concerns another instance of false statement.
On multiple occasions during the 80's, 90's and early 00's, I had cause to drive past Gabreski Air Force Base in Suffolk County, New York. On those times I witnessed a jet fighter on permanent display, that bore the indicia NEW YORK AIR GUARD.
I understood this to be a communication from the government that it was fulfilling its mandate to protect us.
In September 2001 my city was attacked by aircraft. I lost several professional colleagues. Our unborn child was exposed to toxic materials in the air.
Neither the New York Air Guard nor the national Air Force had an effective system in place to protect my city from air attack.
The leaders of the organization that launched this attack have not been apprehended. Four years after the attack, their whereabouts are unknown.
My role in the Plame Affair is that of a U.S. citizen that was lied to that my government was protecting my family.
My continuing role is that of a citizen who does not have full confidence that my government can protect my family.
What is the role of law and lawyers in preventing / cleaning up this kind of mess? Is Robb correct in suggesting there is a new set of global rules in the real world and that states are in decline?
Now that we are not talking about any one in particular: What experience/qualities would you like to see in a Supreme Court justice? Rank in order of importance. What would you add?
Judicial experience at the appellate level.
Provided legal services to underserved populations.
Bar Association experience.
Law review authorship.
Blogging (heh).
Judicial experience at the trial level.
Teaching.
Fitness (recall Bush's first remark to Roberts).
Judicious.
Membership in an evangelical church.
Private lawyering experience as a litigator.
Ownership of dogs.
Private lawyering experience as an appellate advocate.
Good with numbers.
High number of CLE credits.
Good Martindale Hubbell AV rating.
Owns spiffy 'litigation briefcase'
Will vote the way you want.
Did individuals or organizations, including foreign agencies and governments ("Sources") fabricate documents purporting to relate to Iraq's attempts to purchase uranium (the "Documents")?
If so, did the Sources do so at the behest of, or with the knowledge of, or in conspiracy with members of the U.S. Intelligence Community or Administration?
Did the Sources do so in whole or in part in order to influence U.S. decision-making process with regard to Iraq?
INTERNATIONAL DISSEMINATION OF THE ALLEGATIONS
Did individuals or organizations, including foreign agencies and governments ("Transmitters") disseminate the Documents, or information citing the Documents as authoritative (collectively, the "Allegations"), in any channels, with knowledge of their falsity or with insufficient knowledge of their reliability?
Did Transmitters represent the Allegations as reliable, with knowledge of their falsity or insufficient knowledge of their reliability as being based on an authoritative source?
Did Transmitters disseminate the Allegations for the purpose of bringing them to the attention of U.S. policy makers?
Did Transmitters do so at the behest of, or with the knowledge of, or in conspiracy with members of the U.S. Administration?
DISSEMINATION WITHIN THE U.S. INTELLIGENCE COMMUNITY OF THE ALLEGATIONS
Did members of the U.S. Intelligence Community or Administration represent the Allegations as reliable, within the U.S. Intelligence Community or Administration, with knowledge of their falsity or with insufficient knowledge of their reliability?
PUBLIC DISSEMINATION OF THE ALLEGATIONS
Did members of the U.S. Intelligence Community or Administration publicly represent the Allegations as reliable, with knowledge of their falisty or insufficient knowledge of their reliablity.
OBSTRUCTION
Did members of the U.S. Intelligence Community or Administration delay, impede, cover up, or conceal evidence with regard to the creation or dissemination of the Allegations?
If you are interested in what the practice of law might look like (and what roles might be left for lawyers to play in the practice), take a trip to the Online Cyberweek site (free registration required).
I attended the live session that kicked off this discussion at the ABA Law Practice Management Section's fall meeting in Philadelphia on Saturday. Marc Lauritsen and Richard Granat, both legal tech and elawyering pioneers, led the discussion. Darryl Mountain's presentation was the highlight as he applied Clayton Christiansen's theories of disruptive innovation to the practice of law. His one page handout from that session is something that you will definitely want to get a copy of.
There was a great discussion that followed the presentation, with document assembly expert Tim Allen of Business Integrity and I being especially enthusiastic contributors. This great discussion made me really look forward to the discussions we'll have at BlawgThink and gave me some ideas for topics that I'll try to discuss there.
As part of Cyberweek (and beyond), there will be a continuing discussion of the issues raised during the initial presentation. I think it's a discussion that readers of this blog will find especially compelling.
Spam blogs (splogs) are a growing problem. A good number of them grab the content of other blogs and copy it on the splog. It's annoying and irritating.
Unfortunately, today's ad programs make splogs a very attractive away to make money off advertising on blogs. I recently met an SEO expert who explained to me how splogs are perfect vehicles for ads. It's annoying and irritating that sploggers probably are making more money off splogs than bloggers are making from their blogs.
A number of people have brainstormed ways to combat the problem.
I recommend reading and thinking about Jeremy's post and taking a look at some of the other commentary on the issues raised by splogs.
Then, I want us all to think about what it means to apply a Creative Commons license to our blogs and whether it is fair to expect that the Creative Commons organization take on a leadership role in fighting splogs by assisting CC license users in enforcing the terms of the CC licenses? In other words, as I've often asked, what is the practical value of the CC licenses or, as some have suggested, are the CC licenses primarily a marketing effort for the CC licenses?
I don't know the answers to these questions, but I would like to see the CC group more out front on the issue of splogs.
We had a follow-up discussion this morning on our back-channel email list about metadata and the post on metadata I made yesterday.
We thought we'd let you see our discussion and invite you to join in.
Marty started it by saying:
Dennis:
Maybe you could recommend a specific meta-cleanser and provide a link?
Meta-cleanser - sounds like something an existential cleaning service might use.
Marty
p.s. The WSJ ran a piece on the UN report with the title "Will Bill Gates Topple Assad?'
+++++
Denise replied:
How do you reconcile the tension between the fact that on the one hand metadata can convey information you might not have wanted to convey, and it also enhances searchability and the richness of one's internal database? Is the solution just to ensure metadata is purged before things break free of the firewall?
+++++
Dennis replied:
Aye, there's the rub.
In the article on my blog and when I speak about this issue in more detail, I try to reconcile the two faces of metadata and emphasize that it can be quite a good thing. (e.g., "Metadata is not inherently evil. It is often quite useful.")
I'd almost think of metadata with the idea of DRM in mind. Internally and with clients, metadata, especially the collaborative info, is incredibly useful. However, in someone else's hands, it can be quite damaging. The "scrubbing" is almost like sending the doc out with limited rights and access to the "full" document, at least conceptually.
So, metadata can't be handled appropriately without considering who the audience is (or might be). You then start to think of the document not just as a document, but as a published product.
In the classic approach, you would "scrub" the document (or create a new clean version or create a PDF) just before you sent it to an opposing party or someone who should not see the metadata. I.e., handle it as a separate process before the doc leaves the firewall.
BTW, I think the good of metadata far outweighs the bad, and, frankly, it's not that difficult to deal with metadata in most cases, if you take the time to learn about it.
I'd mention a metadata scrubber, but since I'm not getting any royalties on the gigantic amount of business I'd send over to them by mentioning a product on this blog, I probably won't do that on the blog. ;-)
Microsoft has a free downloadable Remove Hidden Data tool for Office 2003/XP that some experts turn up their noses at because it doesn't clean EVERYTHING, but, if you are aware of what it doesn't do, most of the time you'll be fine with it Note that it's for Office 2003 and XP, but, seriously, why are law firms still using older versions of Office as we near the start of 2006?
. Donna Payne has a cleaner called Metadata Assistant that's more or less become the de facto standard tool in legal. It's $79.There are a couple of others (E.g., EZClean.or Workshare Protect.)
Even with scrubbers, you still have the possibility of user error problems.
Both Tom and Ernie are very knowledgeable on these issues and probably have a few other pointers.
My main recommendation is to go into MS Word's properties and turn on what I think is called the "Show Hidden Data" setting (that's the one that will automatically show you the stuff in docs people send to you). Also very helpful is a setting that will pop up the properties window when you first save a document, so you can delete some of the standard automatically-generated metadata.
I think that most explanations of metadata are laden with fear-mongering. Of course, this is probably called for since the greatest danger of metadata is not knowing that it is created in the first place. It's a very binary problem. If you know about metadata and know about the threat then the odds are you aren't going to make a mistake (note I said 'the odds are' and not 'you won't make a mistake').
I think many people don't want to understand the problem; they just want to avoid it. And for those people I would say this: make your document into a PDF using some tool that lets you 'print to PDF.'
Make sure that you have chosen to print only the document and not 'the tracked changes' or any similar thing.
Then after you 'print to PDF' open the document and see if the metadata is visible in the PDF document. If it is go back to step #1. If it's not. then feel free to send it.
If you are doing anything more complicated than that (i.e. redacting using an advance PDF function in Acrobat etc.) then read everything that Dennis has written on the subject of metadata and be afraid. Be VERY afraid....
+++++
Dennis replied:
I really agree that the basics of metadata aren't that hard to learn, if you just invest a little time. Once you start sending Word docs around, though, you really should know what you are doing or you're asking for trouble, just like the UN group.
+++++
Marty replied:
pls blog this thread
+++++
One in our occasional series of looks into our behind-the-scenes discussions.
The Times Online reports the latest in the growing list of documents that have been released with previous edits and other information still contained in the documents and readily accessible.
THE United Nations withheld some of the most damaging allegations against Syria in its report on the murder of Rafik Hariri, the former Lebanese Prime Minister, it emerged yesterday.
The names of the brother of Bashar al-Assad, President of Syria, and other members of his inner circle, were dropped from the report that was sent to the Security Council.
The confidential changes were revealed by an extraordinary computer gaffe because an electronic version distributed by UN officials on Thursday night allowed recipients to track editing changes.
Extraordinary computer gaffe? These "gaffes" have become all too commonplace.
And too many lawyers remain unaware of the issue.
As an example, a lawyer sent me an email today noting this article and saying, "is my understanding correct that the two ways of preventing prior versions from being disseminated in a Microsoft Word document are by either changing the format to pdf or rtf, or by clicking 'accept changes' in Word?"
I thought I'd share my answer to that question:
Arrrghhh!!! Your second assumption is probably the CAUSE of the revisions being able to be revealed! It's absolutely not the solution.
The first method will generally work, but you can mess up and reveal revisions and other information (which I'll refer to as "metadata") even when using RTFs and PDFs. If you want to be really sure, you'll want to use a metadata cleaner and then save the document as a PDF. However, even then you need to become acquainted with the various issues out there and the actual dangers in documents.
Be aware that you can reintroduce that hidden info in a variety of ways after you think that you have "cleaned" it. By the way, don't make the assumption that the doc was in MS Word, even though the odds are that was the program used here. You can pull that prior version info out of other programs as well, including the beloved tool of many lawyers, WordPerfect. In addition, be careful about the assumptions you make about different versions of different programs. Don't make assumptions - make it your business to learn about the issues and the solutions.
This is important stuff, often with embarrassing and far-reaching results. There's no excuse for lawyers (and others) not to be familiar with the basic issues of metadata and to be knowledgeable about both the problems and the solutions. That is, unless they want to have their documents or their clients' documents appear in similar stories in the newspaper. Too many lawyers are operating in the dark on this one. Lawyers routinely send me documents that have metadata that is either easily visible or can readily be surfaced with little or no effort.
I posted a short primer on metadata and the related issues on my blog at http://www.denniskennedy.com/archives/2005_10.html#a000891. Use it as a starting point and then set aside a little time to get yourself up to speed on these issues. Making assumptions in this area is especially dangerous.
How many times do you (and lawyers in general) need to hear the alarm go off on these issues before you stop hitting the snooze button and going back to sleep?
The American Friends Service Committee, a Quaker organization, is planning vigils to protest the Iraq War, to coincide with the 2000th death of American servicemen in Iraq.
The popular blog Little Green Footballs linked to the page under the title "Ghouls Plan 2000 Death Parties.' Comments in the thread echoed the thought that such parties were depraved.
Michell Malkin, popular blogger and Fox News commentator, linked to the LGF item (but not the AFSC post) under the heading 'Ghouls of the Left' and said that an unidentified 'they' were 'partying over the deaths.' Several readers posted comments uncritically accepting the notion that these were 'parties.'
"I remind you that she was one of the top 50 women lawyers in the United States; she's consistently ranked that way."
Orin Kerr at Volokh looked into this and it appears that the references must be to NLJ listings of 'Most Influential' lawyers. Miers started appearing on lists of most influential women lawyers once she started representing Bush, and on lists of most influential lawyers of any gender once she ascended to the White House staff. No one in the comment thread disputed this.
If this is what Bush is citing, then the logic is circular and the reasoning tendentious. Miers is influential because Bush gives her power. And influence might sometimes correlate to but doesn't have a causal relationship with Supreme Court-caliber legal ability.
If you confront someone's tendentious argument then one of two things can occur. They can remove or improve the argument (and the debate progresses as a result). Or they can repeat the tendentious argument. And then you have proof that they are arguing in bad faith. Either scenario is preferable to thoughtless repetition passing as debate.
So let's hope someone confronts the White House on this.
The new FindLaw homepages — one geared toward the legal profession and one geared toward everyone else — go live tomorrow but you can preview them now. They're considerably cleaner — less cluttered, more usable. Looks like a most welcome upgrade. Thanks to FindLaw's Scott Kinney for the heads up.
In my experience, if there is one U.S. case that non-U.S. lawyers are aware of (and want to ask you about in incredulous tones at cocktail parties), it is the McDonald's Hot Cup of Coffee case. OverLawyered discusses.
Apple, Creating Video Podcasts on Mac OS X: "The next generation of podcasting has arrived. Now you can create video podcasts and have them posted in the iTunes Podcast Directory for millions to view and download to their iPods." (Via Podcasting News)
The folks at Lulu have come up with The Blooker Prize, "the world's first literary prize devoted to 'blooks': books based on blogs or websites." And don't miss the Blooker Blog.
"Imagine Karl Rove, tied to a serious crime, working with his defense lawyer. Who do you think would give more advice? Ronald Luskin, the lawyer, counseling Rove on how to avoid jail time? Or Rove, the political strategist, advising his own and other lawyers on how to game public perception of a possible prosecution?"
Whether or not this supposition is correct, how do you advise clients in this sort of situation, where their PR concerns may contradict your perception as to how to proceed?
Earlier this week, Professor Bainbridge (and others; see the links at the end of the good Professor's post) blogged a conference call to which they were invited, featuring RNC Chairman Ken Mehlman on the Harriet Miers nomination. From Professor Bainbridge: "It was a lot of assurances but not a lot of facts. And facts are what we need." From the Financial Times: "Within minutes, bloggers posted their reaction to the call: most were unpersuaded."
And, more frequently these days, I'm thinking terms of search feeds and using them more often. Same ideas as Denise mentions, but in a somewhat different context.
A few notes on upcoming appearances by members of the Between Lawyers group:
Tom and I (Dennis) will be at the ABA Law Practice Management Section's Fall Meeting in Philadelphia. There will be some other bloggers there as well. We're planning to do some kind of blogger meet-up (very informal and very lightly organized) in Philadelphia, probably on the evening of October 20. We'll post details, but let us know if you are interested in meeting up with us.
We're still waiting for the first combined appearance of the entire Between Lawyers group (other than Lawyer X, of course). However, you can see a number of us at the BlawgThink 2005 conference on November 11 & 12. If you are interested in blogging, especially blawgs and blogging by and for lawyers, BlawgThink is the place you'll want to be. More information here or contact me directly.
We'd greatly enjoy getting the chance to meet readers of Between Lawyers in person at events like these.
When I set up my Google News alert for the name of my law firm, and added a similar entry to my Technorati watchlist, I thought it was mostly to keep an eye on what people were saying about the firm. Turns out, this is a pretty great way to stay more current on what things people in the law firm are doing — a potentially impossible task when you're talking something like 1,000 lawyers. Thus did I learn that:
Neither is something that would have filtered through the mass of internal email I receive. Both hit my radar instead because I actually pay attention to things I'm affirmatively looking for. I'm glad they did because both are topics I'm interested in.
For anyone fearful of being overwhelmed by their queries and subscriptions (and it's a very well placed fear): just follow Kevin Heller'slead. And for God's sake, use the "download most recent show only" option in iTunes. Your peace of mind will be tangible.
I expect people (Tom?) do this a lot, I just noticed it this morning and realized I do it all the time: thinking in search. What it is: absently stringing together queries in your head that you need to plug in the next time you're in front of a search engine, in order to get things done in work and life. At the moment, mine have to do with an obscure California statute, and Snoopy.
I was surprised the other day to see a "Lawyer X" posting on the Between Lawyers blog.
Well, maybe I wasn't surprised. Here's the story.
When we started this blog, we asked Hylton Jolliffe if he would set up an author account called Lawyer X that any of us could use. One of the many reasons we like being part of the Corante family of blogs is that Hylton immediately agreed to do so.
The idea of Lawyer X was fuzzy, at best. First and foremost, we saw it as an easy way to bring guest bloggers (especially those who might be risking their reputations to be seen blogging with us) into the blog. It could also be used as a way to play devil's advocate, raise issues in different ways, and as a way for any of us to "step out of character" to make the blog more lively and creative.
And, if you know us, this will be no surprise, it gave us another avenue for mischief and fun.
I remember saying at the time that the danger of creating a Lawyer X was that there was a risk that one day we would all be posting as Lawyer X and no one would be posting in his or her own name. I believe someone pointed out the name of my blog and expressed doubt that I'd ever be posting anonymously.
Although we've talked about having Lawyer X make an appearance on the blog on several occasions, we finally decided last week to bring Lawyer X into the conversation at Between Lawyers.
Now, I have to admit that my first reaction to unveiling Lawyer X at this time was to say, "But everyone will know that Lawyer X is Marty."
Denise's response to that, by the way, was: "< whoosh >milk through nostrils< /whoosh >".
Marty, the serious one in our group, then said, "It doesn't matter, there's a point to using a penname even if some know who it is.and you're free to use lawyer x as well, unless you would like to really fool them and use lawyer D or something."
So, Lawyer X has arrived. Let's go back to the purpose of Lawyer X. Lawyer X is intended to be (1) a vehicle for a guest blogger and/or (2) a rhetorical device in the form of a fictional character that can and may be used by any or all of us.
Now, I have to admit that I'm not really sure who is posting as Lawyer X, although I'd probably be saying that even if I was using the Lawyer X penname (and, Marty, I got the dig about using "Lawyer D").
So, that's the story. Several people asked me in the last few days who or what Lawyer X was. I'm happy to have gotten the chance to identify him or her and to clear up any mystery about his or her identity.
The new issue of the ABA's webzine Law Practice Today has about ten articles on disaster recovery and business continuity issues for law firms (and others) in this month's specially-themed issue. That's in addition to 6 or 7 (depends on how you categorize the articles) on marketing, management, technology and other practice issues (check out the McKenna and Buchanan articles in particular). And it's all free!
A listener to Bill Bennett's radio show argued that if abortion had remained banned, the babies that would have been born would have contributed social security taxes that would solve the social security problem.
Bennett, arguing that because abortion is inherently bad, it is not in need of ancillary arguments, attempted a reductio ad absurdum rebuttal that abortion's benefits would be insufficient to justify abortion. Accepting for the sake of this argument the Freakonomics hypothesis that abortion reduces the crime rate (which hypothesis Bennett doesn't accept), Bennett argued that even though aborting every Black baby would reduce the crime rate, we wouldn't do it because that would be morally reprehensible.
Bennett's comments were criticized. Bennett has now, effectively defended his remark, by attacking MSM for taking his remark out of context.
It has - I heard CNN, in reporting his defense, use the headline: 'Did the media take Bennett's remark regarding aborting Black babies out of context?'
Why yes, you did just then.
But even if MSM missed the subtlety of his point, Bennett is still pulling a fast one.
There were two components to the remark - the absurdist point about abortion, but his choice of a term to describe a group of people with a propensity for crime.
Bennett could have made his point by saying: "You could reduce the crime rate by aborting every baby of convicted felons, but it would be wrong."
But instead Bennett used "Black" as shorthand for 'person with higher than average propensity for crime.'
That's racist.
Incidentally, Steven Leavitt, the author of Freakonomics, notes that:
"(A) white person and a black person who grow up next door to each other with similar incomes and the same family structure would be predicted to have the same crime involvement."
'Of the 80 cases before the Supreme Court last term, 25 involved questions directly affecting businesses, according to data collected by Goldstein & Howe, a Washington law firm specializing in Supreme Court litigation. While 33 cases raised questions of constitutional law, 45 involved the interpretation of a law, one involved an interstate dispute and one involved a dispute between a state and the federal government.
That was a typical year, said Thomas C. Goldstein, a partner at the firm. The Supreme Court's caseload is made up of "relatively mundane questions of federal law, mostly about statutes, not the Constitution, that are important to little corners of the legal universe but are not on the hot-button social issues of the day," Mr. Goldstein said.
"It may be that abortion is the most important question that the court decides," he said, "but it's close to the least frequent."'
Matt Brodie over at Prawfsblawg asks the question: what is the future of [legal] blogging? He offers three suggestions for where law blogs are headed in the future. Orin Kerr at Volokh offers a fourth future with which I'm more inclined to agree: "A continued increase in the overall amount of law blogging until we reach a natural equilibirum, and then a roughly constant amount of blogging with frequent turnover among active law bloggers."
I've been tracking blawgs over at Inter Alia for over three years now, and if there was a year for a "gold rush" in lawyer blogs, it was 2003 -- by my highly unscientific count, over 260 blawgs were created that year; just over 200 were created in 2004. 2005 stands an excellent chance of beating the 2003 total, however. I suspect that the numbers are increasing for a few reasons: 1) blogs are now considered much more "mainstream," and the average Internet-using lawyer is getting in on the act; and 2) lawyers are realizing (thanks to folks like Kevin O'Keefe) that blogs are good marketing tools.
Here's where I think growth is going to come in law blogging over the next year or so: 1) Law professors. Blogs by law profs have exploded over the past year, and as blogging becomes a tool not only for communication but for scholarship, more professors will look to participate. 2) Group blogs. Lawyers that started out on their own will find blogging partnerships beneficial, leading to virtual collaboration. 3) Solos, small firms and large firms alike who see blogs as a marketing tool will continue to enter the blogosphere. 4) Law student blogs, I think, are a constant -- they are continuously coming and going, and a few of them have made successful transitions to full-fledged lawyer blogs once they graduate.
I'm going to steer the conversation here back towards technology just for a bit. Those of you who read this blog no doubt have a good handle on RSS technology and its implications for the future of information delivery and management. But one reason it is still being used by only 6% of Internet users (according to one survey) is that it's just too darned complicated. When I try to explain that subscribing to an RSS feed is just as simple as "clicking on that little orange RSS or XLM box, then copying the URL of the feed, then going back to your news reader and pasting it into the subscription box..." I get a lot of blank looks.
People who use online newsreaders have it a little easier; there are specific links that provide "one-click subscription" to My Yahoo! and Bloglines. But that relies upon the feed provider to set up specific My Yahoo! and Bloglines buttons. It certainly would be easier if the newsreaders themselves came up with a "one-click" solution.
Here's a product that's certainly a step in the right direction. A company called KnowNow is providing Enterprise RSS services to companies, but it also has a nifty product called eLerts -- just download the toolbar (for IE only, unfortunately), and it provides real-time notification of new content posted to the feeds you select. But here's the great part: to add a feed, all you need to do is drag the RSS or XML or ATOM button to the toolbar, drop it in, and you're subscribed. Although I wouldn't necessarily recommend the KnowNow toolbar as a newsreader, this drag and drop idea is a terrific advance in making the subscription process more user-friendly.
The 'Republican Strategists Need Roe To Maintain Power' conspiracy meme continues to percolate.
From a NY Times op-ed piece (written by a Democratic consultant) we have the following thought experiment:
'. . . [I]magine a reverse situation in which President Bill Clinton opens up the newspaper to discover that one of his two appointments to the court has voted to overturn the constitutional right to privacy and abortion. There's a reason this is hard to imagine: it borders on the preposterous.'
Via Volokh: Supposedly Senator Leahy asked Harriet Miers who her favorite Supreme Court Justice was and she says 'Warren' and he raises his eyebrows or something and she adds '. . .Burger.' That may not be what actually happened but this version sounds like the Ignatz Ratzkywatzky exchange from The Miracle of Morgan Creek.
It strikes me that ads that solely announce that the advertiser is suing someone, are unusual. The Word Network is running blogads that are titled 'See Why We Are Suing Sirius' with no text, and a graphic that reproduces part of the caption of the complaint. That's the whole ad.
I greatly enjoyed Jeremy Wagstaff's carefully annotated and hyperlinked post called "The New Cliche: "It's the Wikipedia of . . ." and wanted to join in the cliche-creating game.
For Wikipedia fans, I do realize that this blog and Wikipedia have very little in common, except both Wikipedia and Between Lawyers credit Denise Howell with coining the word, "blawg."
This from the AYSO Soccer memo to coaches: no team should win by more than four goals, but coaches must also avoid the appearance of attempting not to win by more than four goals.
All right -- as they say in poker, I'll call your poetry, and raise you a song. Unlike Denise, Ernie and Dennis, I'm no poet; but I do love to sing. My usual outlet is Bar None, a yearly show we put on for charity -- here are a couple of tidbits from the show:
First, a pretty tame picture of me singing "Always Billing Time" (to the tune of "For the Longest Time") at this year's show.
Next, here's a link to a song we recorded a few years ago -- it's a barbershop quartet number called How Could You Believe Me?
Hopefully I haven't just compromised any remaining integrity I had around here.
I thought I'd join Denise and Ernie and post a poem I wrote a few years ago. It is based on my reading and some remixing of a wonderful book by Peter Matthiessen, not any trip to Tibet by me.
Tibetan Daydream (after Peter Matthiessen)
The ground, whirling its own energy
in a slow spiral,
joins my body to the sun
until, no longer mine,
small, silver breaths of cold, clear air
are lost in the mineral breathing of mountains.
Grown onto the mountains like moss, bewitched
in blinding snow peaks, crystalline air,
sounds of earth and heaven drifting into a silence
of requiem birds, mythic beasts, flags, great horns,
old carved stones and rough-hewn Tartars
in braids and homespun boots.
Silver ice on a black river,
the Crystal Mountain.
In a rising spring of forgotten knowledge,
a glimpse of one's own nature,
a homegoing that needs no home,
like that waterfall on the Suli Gad
that turns to mist before it touches earth,
then once again rises into the sky.
'Twas the night before Zeitgeist, when all through the fog,
Not a creature was stirring, not even a blawg.
The shingles were hung on the Web with such care,
In hope that Saint BusDev soon would be there.
When out in the Ninth there arose such a clatter,
(And not just 'cause the Supremes think us Mad as a Hatter).
On over to Howard's I clicked (without Flash),
Tore into the case, and turned down the mash.
It took a few moments, though I'm far from deaf,
for the file to load up ('twas a cursed PDF).
When, what to my wondering eyes should appear,
A lustrous dissent! And the word "blawg" so clear!
With a little old author, so lively and hot,
I knew in a moment Kozinski I'd got.
More legal than eagles, his sources they came,
And he chided and scolded and called them by name!
"Through these lengthy proceedings, this judge, if he's that,
based his actions on something right out of a hat.
Not a case, not a statute, not treatise nor tome,
Was cited to justify where he did roam."
As questionable authorities before the wild hurricane fly,
when they meet with sound precedent, up to the sky,
So up to the house top, and on through the smog:
"Not a law review article — not even a blawg!"
And then, in a twinkling, I heard in the land,
the wailing and weeping of Unlearned Hand.
As I drew up my head, and was turning around,
I knew I had run the cause right to the ground.
Oh why, Judge Kozinski? Your timing does blow! Just 400, you know, will be all who will go!
A bundle of blawgers would give their eyeteeth,
to hear Larry and Barry and Sergey — (no Keith?).
Our hopes — how you've dashed them! The world now — how chary!
Of those at the end of your list they'll be wary.
Your nod to our presence, though lovely and fine,
Has put us, no bones, at the end of the line,
Of writers whose words perhaps warrant belief.
Your list does encircle our PageRanks like a wreath.
It has a broad reach, near as broad as the telly,
And leaves little blawgs in a heap sort of smelly.
We were clubby and pumped, a right jolly old meme,
With more juice when we posted than it might have seemed.
But a blink of your eye and a shake of your head,
Soon gave us to know we had much left to dread.
For together with those who think "blawg" is distasteful,
(And those who think words not in Webster's are wasteful),
I'm afraid that the finger is all that we've got,
From Google, re Zeitgeist — invited, we're not.
(Rick or Glenn, if you are, I just don't want to hear it.
There's already too much that's crushing my spirit.)
But I heard them exclaim, as they blawged late at night,
"If you're going to dis us, then link us — all right??"
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
