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.
Kevin O'Keefe reports that "FTC staffers, with the backing of commissioners, say they are concerned the changes are not specifically tailored to prevent deception and could instead suppress truthful, nonmisleading advertising."
Amen.
The New York efforts are one more round in the continuing state-by-state trend of vague, micro-managing restraints on lawyers' speech which are all-but-impossible to understand, let alone comply with, and directed at "problems" that existing rules should cover and have many unintended consequences, the most unintended of which may be to bring the FTC or some other Federal inititatives into the regulation of lawyers. In the current environment, national rules promulgated by the FTC might well be better than the crazy-quilt of state regulations we are now seeing.
Food for thought: As Kevin O'Keefe says, "Strange that the FTC may have to protect consumers from lawyers passing restrictions supposedly to protect consumers. Looks to me like 'well entrenched lawyers' are passing restrictions to prevent younger lawyers from taking some of their legal work through education based marketing that helps consumers."
More details and comments on the proposed rules can be found here and here and here and here. My comments from a few months ago can be found here.
Let's discuss, because the expansive definitions in the New York rules mean, on their face, that the rules may apply to any lawyer anywhere with a web page, let alone a blog.
As I read the rules, EVERY public communication is an advertisement and any communication that isn't an advertisement is probably a solicitation. That should cover almost every communication between lawyers and the public.
In either case, a shocking number of draconian and micro-managing rules will apply.
I'll let others consider the free speech and other aspects of these rules, but I'd love to see some marketing experts analyze what the actual marketing effectiveness of any communication that satisifes these rules will have. My tentative conclusion is that if an "advertisement" or "solicitation" might in even a limited way be effective, it will violate the rules. If it has even been recommended as an effective form of marketing, it will probably cause you trouble.
This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era.
Should you care? Well, consider this quote from the rules: "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this state if the lawyer provides or solicits any legal services in this state." Take a quick look at the definition of "computer-accessed communication" in the amended rules and consider how a website or blog located anywhere is likely to be treated by the plain language of these proposed rules.
Once again, we see a concern about a limited problem being turned into wide-ranging regulations that will have enormous unintended consequences and seem designed primarily to protect established, successful practices from new competition.
Are we seeing the last gasp of an attempt to apply 19th century concepts to a 21st century world, or will lawyers be the only group able to roll back the changes the Internet has brought to the rest of the world? I'm betting on the Internet, but I'm quite curious about what others think about these proposed rules and others like them. It might be a good discussion topic for a summer Friday.
There is a growing discussion of the relevance of our current court system and the ways lawyers want to use it in the Internet era. More accurately, there is a concern about whether the system continues to be workable.
Ernie points to a recent (and some might call mind-boggling) ruling of a federal judge that requires the opposing attorneys in a case to settle their latest dispute with a game of "rock, paper, scissors."
Ernie does a nice job of explaining the basis point of our court system and concludes, succinctly, that:
Hell, when a federal judge has to tell the attorneys to use a child's game to resolve their disputes then you know the system is completely broken.
I'm willing to be persuaded otherwise, but I completely agree with Ernie. This isn't Law 2.0.
Where do we go from here? What client is going to be happy with this kind of ruling and the behavior that leads to it? Will lawyers chuckle at this and similar stories as they reap the unintended consequences of breaking the court system? If lawyers make a joke of these matters, why should we expect others to take us or the court system seriously? Consider Ernie's comments carefully.
The phrase "the interstices of ivory tower and pop culture" that Denise quoted in the previous post reminded me of the core concept and mission of "Between Lawyers" (see "About this Blog") at bottom of left column of our blog. "Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect."
"From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print."
What, what, what? What about the practicing lawyers with blogs who try on a daily basis to translate legal issues and legal developments into practical explanations and a conversation that we can all understand.
Looks like we have more work to do at the Between Lawyers blog, RethinkIP, Evan Schaeffer's Legal Underground and the many other lawyer and law librarian blogs that are changing the dynamic and the way that the law is discussed today before we get our message out there.
Look, I like the law professor blogs and law student blogs, but ultimately what we all really want to find are practical answers to real-word legal questions, issues and problems that face us.
Check out Denise's recent post "Apple v. Does Decision Issued" if you want to see where I think blogging is leading us in the ways we discuss breaking legal developments.
I enjoyed Lithwick's article and agree with her main premise about the value of law-related blogs and what they add to the discussion of legal issues, but I'm surprised by the over-focus on law professor blogs and the invisibilty in the articles of the categories where most of the law-related blogs live.
Interstices are OK for some things, but there are good reasons we called this blog "Between Lawyers" rather than "Jurisprudential Interstices."
I doubt that anyone has more trouble with or dislikes cell phone service more than I do. Today was another adventure in tin-can-and-string sound quality and dropped calls - and I was the one on the land line today.
I don't know anyone who does not admit to having similar problems when I press them, even though they seem to love their actual cell phones - the hardware, that is. What the heck are we all paying for?
Tonight, I found a podcast of a a presentation from Ed Zander of Motorola and here's the description:
Motorola Chairman and CEO Ed Zander says the ultimate cell phone would come back into the home–that is, it would be the only phone one would need. But that development seems far away for users in North America. “People always say to me, ‘I can go to China, and go to the Great Wall of China and make a better phone call than here in the United States,” Zander offered during his keynote interview with Gartner analysts Nick Jones and Ken Dulaney. “And it’s probably true,” Zander noted.
Zander is more polite than most people I know when they get started on this topic - here's a link to the podcast - http://www.podtech.net/?p=645. Check out his point of view.
What do the rest of you think of cell phone service in the U.S.? What are we getting for what we are paying? Is it reasonable to expect more? Or am I the only one this really bothers?
There's been a lot of discussion in recent days on the latest round of associate salary increases at large US law firms, Bruce MacEwen does a nice job of summarizing the issues here.
The Wired GC stirs the pot with a couple of must-read observations, but here's the money quote:
(We of course know it’s not about price-fixing.)
Hmmm, there's that one hyphenated word.
I remember an earlier round of associate salary increases back in the dot-com era when I was on my firm's hiring committee. As we considered, all the issues you read about in the discussion of the economics of these issues and the need to raise salaries to attract new lawyers, a good number of my friends in small law firms kept using that hyphenated word - "price-fixing." I never bought their arguments.
The category of this post is called "Provocations." Here comes the provocation and we'll see what discussion we get.
In recent months, I've noticed a ratcheting up of the "protections" of the legal profession from within - stories about lowering the rates of bar exam passage, decisions that law firms can't use certain types of advertising (pit bull ads anyone?), other efforts on preventing "unauthorized practice of law," and and now law firms all over the country raising starting salaries by same amounts in all but unison.
Is the legal profession begging for outside (governmental) investigation, intervention and antitrust regulation?
I'm just raising the question to see what people think, not necesarily as a reflection of my own opinion.
Thanks to the Wired GC for asking some tough question. I highly recommend his post.
Consider this use of technology in the practice of law:
Imagine that you can have an Internet communications feed between a lawyer in a courtroom, arbitration hearing or deposition and other lawyers, outside experts and/or client representatives who receive a live feed from the proceedings. Those outside the proceedings can use instant messaging or other techniques to assist the lawyer at the proceedings in much the same way they might if they were physically present.
I saw this kind of technology demoed live at the ABA TECHSHOW in 1998. I thought that it was a great way to improve the representation of your client and offered some significant benefits for training and supervising lawyers, savings on travel costs, and the like.
As I understand the story, there does not seem to be a question about whether the outside consultant could not be in the arbitration hearing, although there is a lot of discussion about whether this use of technology should be disclosed to the other side. There is not a lot of discussion about whether this approach afford a client better representation.
Here's my question: Am I missing something here if I am thinking that this is an innovative use of technology (even though the tech has been around for awhile) rather than a "corruption of the legal system"? I'm willing to learn where I'm wrong, but I like this use of technology.
Here's a provocative topic for a Friday afternoon from a fascinating article in today's ABA Journal eReport. Terry Carter's "No Time for a Round-up" covers a recent Kansas case where a court censured a lawyer for, among other things, rounding 45 minute blocks of time to one hour.
The article then goes into detail about what might and might not be permitted in the rounding of time to the nearest billing increment. Read it yourself. I'll simply note that some of the examples referred to specific questionable practices that looked suspicious on their faces.
The most interesting comments are from a law professor who suggests than ANY rounding should be prohibited. In other words, time entries would become 5 minutes, 24 seconds, rather than .1 hour. The technology, she suggests, is available to do this. This might give new meaning to "being on the clock." Before long, embedding chips directly into lawyers' brains might make timekeeping even more accurate.
If this article makes you think about alternative billing models, Tom Mighell and I wrote a couple of columns about resources on this topic here and here.
Andrew Sullivan writes about a Stephen Hayes article on terrorist training camps in Saddam's Iraq. In the Hayes article, we learn that of approximately two million seized documents, only 50.000 have been translated and analyzed in the last few years, causing growing levels of exasperation in the U.S. government and intelligence community.
It goes without saying that this state of affairs again raises the "are we safer now?" question and, if you read the entire article, you'll wonder where priorities really lie in the current bureaucratic approaches.
HOWEVER . . .
In the middle of Hayes' article comes one of the most intriguing, even innovative ideas we are likely to see in the field of intelligence analysis.
Consider this quote:
Following several weeks of debate, a consensus has emerged: The vast majority of the 2 million captured documents should be released publicly as soon as possible.
Defense Secretary Donald Rumsfeld has convened several meetings in recent weeks to discuss the Pentagon's role in expediting the release of this information. According to several sources familiar with his thinking, Rumsfeld is pushing aggressively for a massive dump of the captured documents. "He has a sense that public vetting of this information is likely to be as good an astringent as any other process we could develop," says Pentagon spokesman Larry DiRita.
Fascinating stuff. Surely putting thousands of eyes onto these documents must be better that storing them in boxes. It would also be interesting to see what cutting-edge scanning and analytical tools used in electronic discovery could do with these materials.
I encourage you to read the article and draw your own conclusions. I find this story quite troubling and think that it would be a good idea to "open source" this material rather than to keep it in closed boxes. A public debate over the issue would also be worthwhile. Consider this approach in contrast to John Robb's recent comments on the problems of isolated decision-making.
". . . intervention in a partisan conflict in the Texas House of Representatives using the resources of a Federal agency, the Federal Aviation Administration. This action raises serious concerns under House standards of conduct that preclude use of governmental resources for a political undertaking."
How did President Bush and other high-ranking officials respond to this mis-use of governmental resources?
Did they say something along the lines of: "This is wartime - the government is asking for unprecedented powers over the citizenry, therefore those in government must do their utmost to uphold trust that it will yield power responsibly. Congressman Delay's actions erode that trust"
Resistance to heightened governmental power is not based on a desire to coddle terrorists, but, among other reasons, on a fear that these powers will be abused. These fears are not hypothetical.
PRESIDENT BUSH: Our country is at war, and our government has the obligation to protect the American people. The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people. And we are aggressively doing that. We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.
"And, therefore, we're working with Congress to make sure that as we go forward, we make it possible -- more possible to do our job. There's an enemy that lurks and plots and plans, and wants to hurt America again. And so, you bet, we'll aggressively pursue them. But we will do so under the law. And that's why you're seeing members of my administration go and brief the Congress. We want to work together in this matter. We -- all of us have an obligation, and it's a solemn obligation and a solemn responsibility. And I'm confident that when people see the facts, that they'll recognize that we've -- they've got more work to do, and that we must protect ourselves in a way that is lawful."
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.
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.'
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.
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.'
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.
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.
I enjoyed B. L. Ochman's succinct summary of the recent story of the New York and San Francisco transit authorities sending cease and desist letters to a blogger who was making available iPod versions of the printed subway maps they provide for free.
She says:
Go figure. Cease and desist letters are a bit of a joke in the blogosphere. Once you see them, and how seriously preposterous they are, it's hard to take the writer seriously.
There are many lawyers who see every issue as a legal issue for which only legal options, such as cease and desist letters, are the only conceivable options. How much better it would be for everyone if the lawyers here had simply suggested that the people involved talk to each other and work together to see how they could make the useful downloadable versions of the maps available to users of the transit systems?
Since I've seen at least a half-dozen mentions of this public relations fiasco today, I'm guessing that some people might be reconsidering the wisdom of acting purely on legal advice without considering real-world consequences and common-sense alternatives.
This story also raises the issue I've seen raised on the PR blogs over the past year or so - are companies looking to public relations, marketing and other professionals rather than lawyers to handle issues with real-world implications? Would you rather have B.L. Ochman advising you on how to handle this issue or a lawyer who is firing off cease and desist letters? I simply ask the question.
A theme that comes up from time to time here on the Between Lawyers backchannel is: what will the future look like if everyone subscribes to the "Daily Me"? Will people forsake national news sources (denoted in the blogosphere with the usually pejorative term MSM), or will they seek a balance?
There is an on-going attack against MSM that it is biased. Conservatives attack liberal bias in MSM reporters, liberals attack conservative bias in MSM ownership.
One form of criticism is bias by omission or emphasis - the charge that a media source doesn't report or downplays certain stories. For example, Michelle Malkin criticizes MSM for not emphasizing a financial scandal at Air America. Instapundit and Powerline regularly argue that MSM does report enough positive news from Iraq.
On the one hand, the blogosphere has a democratizing affect on fact-checking - Rathergate being held up as the textbook example. Very often bias motivates digging (I suspect that a Democrat didn't drag up the kerning analysis) but the more correct information out there, the better for everyone.
On the other hand, the blogosphere can un-do that good work with partisanship. An unrelenting attack of bias against MSM may not have a completely salutory affect if all it does is to encourage people to indulge more in confirmatory bias - where people feel that they don't need to accept as true any fact that challenges their belief system, if the source of the information is allegedly biased.
However, who are the sources of these charges of bias?
Instapundit, Michelle Malkin, Powerline and Hugh Hewitt are vocal critics of bias in MSM, and all have accused MSM of bias by omission.
All of these bloggers regularly discuss national politics and the Bush Administration. However, to the best of my knowledge, none of them have mentioned this week that a high ranking Bush administration official named Safavian, was arrested. At the time of this writing, if you put 'Safavian' in as a search term in their website searches and you'll get no hits.
Safavian was arrested for allegedly obstructing the investigation of someone named Abramoff. Of these four bloggers, to the best of my knowledge, only Malkin has reported that Abramoff was indicted.
Is this a case of pot, kettle, black?
Well, it seems that a taxonomy of blogging would be useful in order to articulate some kind of standard. The New York Times holds itself out as publishing 'all the news that's fit to print.' It may have editorial guidelines as to the ripeness and importance of a story - but if it completely ignored a news story reported by similar national papers, then it would raise eyebrows.
These bloggers aren't newspapers and don't have a similar obligation to be comprehensive - but they do cover the national beat and I'm interested in why they didn't report this story.
What are bloggers, then? Are they reporters, analysts, columnists or advocates? Or do they change from post to post?
Does the blogger identifying themselves as liberal or conservative solve everything?
Would a code of ethics help?
Maybe the 'Daily Me' of the future would be a good thing - but it concerns me that people may forsake certain forms of media because of charges of bias, and instead subscribe to sources that tell them only what they want to hear - accurate or not.
It's no secret that big law firms forcing lawyers back into waering suits and ties and dispensing with "casual days." What can lawyers do about this disturbing trend? Here's a great new idea.
There's a post on Engadget today about the Burton Ronin Espionage Jacket . The jacket has an extra feature that some lawyers might prefer over even the traditional gray suit jacket: a hidden digital camera. The possible benefits, especially in a litigation practice, are beyond calculation.
Potential downside: As this picture shows, although the camera may be hidden, people might suspect something is up when you wear the coat.
Check it out. It might become the legal fashion craze for depositions and on-site document review.
It might make for a good law school exam question to ask what legal issues might be raised by wearing and using one of these jackets, but I'll leave that project to the law professors.
Blog Maverick and others had asked whether communities would 'give back' federal pork projects earmarked for them, in order to assist in the re-building of New Orleans.
The WSJ now reports (via Professor Bainbridge) that the people of Bozeman, Montana have done just that.
I think the gauntlet has been thrown down. Many communities may well be prepared to give up some gilt-glazed pork (to avoid an inflationary reconstruction plan).
Perhaps the folk in Ketchikan, Alaska will give up their 'bridge to nowhere' (reported at costing between $235 to $350 million).
For those of us who want to identify their local pork, if anyone is aware of a url listing recently earmarked pork and their locales, please advise.
"THE PRESS WANTS TO SHOW BODIES from Katrina. It didn't want to show bodies, or jumpers, on 9/11, for fear that doing so would inflame the public.
I can only conclude that this time around, the press thinks it's a good thing to inflame the public. What could the difference be?"
Powerline adds the point that 'the press' was similarly inconsistent in its desire to publish photos of soldiers' caskets from the Iraq war.
Instapundit does not provide support for the assertion that there are members of the press who had access to photos of bodies or jumpers on 9/11, that they refused to publish such photos, and that they did so so as to not inflame the public, and that these same members of the press desire to publish photos of Katrina victims (or soldiers' caskets).
It is my understanding that there were two groups of victims at the WTC. Those who were inside the building, and those who died on the plaza, as they were either jumpers or were struck by debris or jumpers.
Obviously no photos exist of the bodies of those who were inside the building.
As to jumpers, Instapundit is aware that a photo of a jumper was widely published. On September 11, 2003 Instapundit posted the most widely disseminated photo of a jumper (he took it down because of protests). He linked to a comment which itself linked to an article in Esquire about the photo. The Esquire article reported that the jumper photo was published in the New York Times and 100's of papers.
(As an aside, I agree with the sentiment expressed by a writer to Instapundit on September 12, 2003, that photos of workers trapped in the building are more inflammatory than a picture of a body).
As to the bodies on the plaza, I am not personally aware of photos existing, even on the rotten.com's of the world, but even if they did exist, it does not take much of a visual imagination as to why virtually no legitimate media outlet in the world could publish a photo of a body that fell almost 1000 feet, to the extent that it could even be called a body.
Interestingly, western media has been accused of a different bias. After CNN International showed tsunami victims, it was accused of displaying greater sensitivity to 9/11 victims because they were American, to which a CNN representative replied:
Even if Instapundit's factual premise was correct, that members of the press had pictures of 9/11 victins that refused to publish, and these same members of the press wish to publish Katrina victims photos, and even if Instapundit's inference is correct (that this is evidence of bias), then, to answer Instapundit's rhetorical question: there is a difference.
There is a public policy argument for allowing the press unfettered access to Katrina victims that doesn't pertain to 9/11 photos (that in my view are superfluous to the most-reported event in history).
Unlike photos of bodies of people who jumped from the Twin Towers, photos of bodies of people who died in nursing homes, died of dehydration, died of violence, died at Chalmette Slip after being rescued, died at the Convention Center - are evidence of what might be crimes perpetrated by people not hiding in caves.
As to the charge of ghoulishness, to the extent that such photos can potentially lead to justice, fighting for the right to take them shows respect for the victims.
"No, George Tenet did not sit there for five days with me, misleading me," he said, referring to the week he spent at the Central Intelligence Agency reviewing the evidence on Iraq before making his presentation to the United Nations. "There were some people in the intelligence community who knew at that time that some of these sources were not good, and shouldn't be relied upon, and they didn't speak up. That devastated me."
And then they were arrested for treason, right? I look forward to seeing the interview.
NY Times article on intra-governmental squabbling last week. Important paragraph:
"The debate began after officials realized that Hurricane Katrina had exposed a critical flaw in the national disaster response plans created after the Sept. 11 attacks. According to the administration's senior domestic security officials, the plan failed to recognize that local police, fire and medical personnel might be incapacitated."
I'm puzzled by this sentence, as incapacitation of local personnel seems foreseeable in such events.
Yesterday Larry Bodine announced that there is a new "King of Blawgs," and it's Patrick Lamb, of the great In Search of Perfect Client Service blog. Larry's pronouncement is based on the fact that Patrick's blog is now listed as the Number One "Most Popular All-Time" blog as measured by clickthroughs at Blawg.org.
With all due respect to Patrick (who has a great blog and who is indisputably the current "King of Blawg.org"), I don't think this is a measurement of anything other than what people are clicking on at Blawg.org. Furthermore, when I listened to J. Craig Williams' and Bob Ambrogi's great new podcast Coast to Coast this past week, I learned that they are "America's Top Webloggers in the Legal Profession." By what standard? It got me to thinking, how do you measure the popularity of a law-related weblog?
-- Back in 2003, Jerry Lawson proposed (in a Net-Lawyers listserv message, as well as Lessons from Ernie the Attorney) that one way to measure a weblog's popularity was to run a Google search, and count the links. I didn't agree then, and I don't agree now. If you create a large number of links in your blog pointing back to your blog, those links will show up as results in a Google or Yahoo! search. That doesn't make your blog any more popular.
-- Some of the blog search engines are better at judging blog popularity through link popularity. Technorati has its Top 100 Blogs list, and Feedster recently came out with the Feedster 500 (a great new tool is TalkDigger, which aggregates the results of a number of blog and traditional search tools). Are the number of links to a blog a good judge of popularity? Partially, I think. They are certainly evidence that somebody thinks enough of a blog to link to it. But just because I link to a blog one day doesn't mean that I like it enough to visit it every day.
-- And that's where I think real blog popularity lies -- readership. The best blogs are those that bring readers back on a regular basis. But measuring popularity by this standard is not easy, because currently it can only be done on a blog-by-blog basis. You can use a service like Sitemeter to measure the actual visitors to your site, but with the advent of RSS, that number is likely to be deceptive; individuals who subscribe to an RSS feed don't register as "site visitors." A service like FeedBurner helps you determine how many subscribe to your RSS feed, but those figures are not available to the public.
Until we can come up with a reliable way to measure readership combined with link popularity, it may be premature to crown a king (or queen) of the blawg world.
"'The good news is - and it's hard for some to see it now - that out of this chaos is going to come a fantastic Gulf Coast, like it was before. Out of the rubbles of Trent Lott's house -- he's lost his entire house - there's going to be a fantastic house. And I'm looking forward to sitting on the porch.' (Laughter)."
"Just think of that quote for a minute; and the laughter that followed. The poor and the black are dying, dead, drowned and desperate in New Orleans and elsewhere. But the president manages to talk about the future "fantastic" porch of a rich, powerful white man who only recently resigned his position because he regretted the failure of Strom Thurmond to hold back the tide of racial desegregation."
. . . the head of the Agency, Mr. Mike Brown, practiced law in Colorado and Oklahoma, where he served as a bar examiner on ethics and professional responsibility for the Oklahoma Supreme Court and as a hearing examiner for the Colorado Supreme Court. His bio here.
This photo, taken Tuesday, after the levees had been breached, strikes me as evidence of an almost sociopathic lack of empathy in the President (and of a dereliction of duty).
After CNN reported today that helicopters were diverted from plugging the levee breach on Tuesday, in order to rescue individuals on rooftops, I wondered what is involved in securing sufficient helicopters in a national emergency. It took me two minutes of Googling to identify the Erickson Air Crane Company and obtain their email address and phone number. The Air Crane is one of the most powerful helicopters in the world (used for lifting trucks and putting out fires, for example). I emailed them today asking if anyone had contacted them about the levee. They replied immediately that while they had put out the word to government entities, and while they are a DOD-listed contractor, they had not been contacted by any Government entity as of Wednesday evening.
The levee broke on Monday night. I assume that a governor, or a general, or maybe a President would have gotten the CEO of this company (and other companies like them) on the phone and said "get over there ASAP."
Gods of Commerce blog notes the recent VIOXX verdict and suggests that a juror that can devote the time necessary to be on a jury likely has 'no serious work responsibilities and is outside the commercial sector' and therefore may be biased against business. Therefore trials should run only four days a week, from 7 AM to 1 PM.
If you follow Jeff Jarvis' great Buzzmachine blog, you'll know that he has been on a tear this summer about some terrible customer service from Dell (his own "Dell Hell," as he terms it). You can read the whole saga here. As a result of his posts, Dell has now instituted new policies for dealing with the blogosphere. The company is going to monitor blog posts for customer dissatisfaction and then contact those who can be identified.
This is great news for Jarvis and for other Dell users with blogs, but what about the rest of the Dell users? Dell's response seems to be saying that the only customer complaints they care about are those that can easily be made public, via a blog. I'd love to see some details about how all Dell customers will see improved service. Until then, the moral of this story is: get your own blog.
Dave Winer's post "NY Times and the Web" asks some important, tough questions about mainstream media and its attitude toward blogging in these blogging times.
The money quote, in a great example of Dave's signature style:
"You'll know they're really jumping in when they let a blogger onto the op-ed page. I don't mean when they give a blog to one of their op-ed columnists, rather when they put someone who is rooted in the blogosphere in a position of power and authority in their midst, someone who can call the Times on their bullshit, in the Times. Until that happens they'll be cloistered, insulated, immune, clueless. I loved the quote from Sulzberger, btw, but it was bullshit."
Like Evan, I lack the credentials to enter the kind of academic debates he references in his post. So, I thought it might be fun to launch a parallel discussion among the insufficiently-credentialed, non-academic "practicing lawyers and others" group.
Interestingly, I had a discussion with a non-lawyer the other day about the nature of legal education and found it difficult to explain the current state of legal education. Especially difficult to explain (probably because I don't understand it myself) is the accreditation process for new law schools, with its heavy emphasis on number of volumes in a school's law library. My friend kept shaking her head in disbelief.
One way to deal with Evan's question is to ponder whether law school has become impossibly over-academized and there is a need to go back to something that resembles a professional training school. For example, my friend and I were discussing what doctors would be like if medical school and residency focused only on academic theory and not practice, as legal education, some might argue, has seemed to have done.
Then there's always the interesting question: why do I even need to go to law school if I can pass the bar exam? And its corollary: why do I need to take the bar exam if I graduate from law school?
The interesting empirical study related to our initial question is: what is the attendance rate of third year law students in their classes? Some lawyers would be a little embarrassed by their own answer to that question. Not me or anyone I know, of course, but I have certainly heard some stories.
A woman was near death from a special kind of cancer. There was one drug that the doctors thought might save her. It was a form of radium that a druggist in the same town had recently discovered. The drug was expensive to make, but the druggist was charging ten times what the drug cost him to make. He paid $2000 for the raw material for the drug and charged $20,000 for a small dose of the drug. The sick woman's husband went to everyone he knew to borrow the money, but he could only get together about $10,000 which is half of what it cost. He told the druggist that his wife was dying and asked him to sell it cheaper or let him pay later. But the druggist said: "No, I discovered the drug and I'm going to make money from it." So the husband got desperate and broke into the man's store to steal the drug for his wife. Should the husband have done that?
Today we see that 'plaidgate' has been linked to by Instapundit and by the Washington Post's media critic who characterizes the transformation as 'an overheated interpretation of some mostly tongue-in-cheek posts' but nevertheless quotes the Charmaine Yost piece verbatim (keeping links intact).
Wikipedia's bio of John Roberts indicated that he went to an all-male boarding school, and was on the wrestling team.
Manhattan Offender, which appears to be a small personal blog, points this out, along with the fact that he took French and sang in the choir, and jokes that he might be gay. At least it is my conjecture that in this context, it was intended as an ironic remark, and that readers of a Manhattan gossip blog will perceive it as such.
Wonkette cites the Manhattan Offender joke and adds that Roberts must be a flame-thrower because he edited the school paper, The Torch. To add to the joke, she cited a NY Times piece entitled 'Court Nominee's Life Is Rooted in Faith and Respect for Law' for the bit that Roberts had played 'Peppermint Patty' in a high school play.
Ann Althouse a law professor, reads Wonkette's piece, notes that she had come to the same 'conclusion' that Wonkette did, and therefore she concludes that the NY Times had intentionally placed the bits about Peppermint Patty (and a photo of Roberts in a 'all-male wedding photograph' (as in photo of the groomsmen)) to plant the notion that Roberts was closeted.
Charmaine Yoest, an author and policy consultant, cites Manhattan Offender, Wonkette and Althouse's posts for the proposition that the 'left' has begun a whisper campaign against Roberts. She suggests that the left are homophobic.
Powerline , a high-profile conservative blog, in a piece entitled 'They Were Already Beneath Contempt,' cites Yost for the proposition that the 'Democrats' are hinting that Roberts is gay. He also adds that the Democrats were in favor of slavery.
Gordon Allport, in the 'The Psychology of Rumor' describes the manner in which rumors are transmitted (I'm using Malcolm Gladwell's summary of Allport from his book 'The Tipping Point'): The story is leveled - details essential for understanding (such as the fact that Wonkette is a humorist) are removed. The story is sharpened - the source of the 'facts' are no longer Wikipedia and the NY Times but 'the left' and 'Democrats.' The story is assimilated - the story is changed to make sense to those spreading the rumor.
The Democrats are spreading a scandalous rumor about the innocent nominee for their own purposes - that story will make more sense than the story that someone made a not particularly funny joke about Roberts being on the wrestling team. At least it will make more sense to those who will link to the Powerline without checking the links back to Manhattan Offender and Wonkette.
Let's assume the CEO of your client came to you and said: "Loyalty has long been the most hallowed virtue in this company and I want you to draft a code of conduct for my officers, providing guidelines as to how an officer executes his or her duties so as to display loyalty to his or her superiors, peers and employees."
So if you were drafting a code of conduct, how would you define loyalty in the context of an organization?
Presumptions in favor of incumbents vis a vis outsiders?
Preferences in favor of incumbents?
Discrimination in favor of incumbents?
Is loyalty always a virtue?
Can loyalty be an over-riding managment principle?
How would you articulate proper limits to loyalty (if you would)?
With all due respect (and copious amounts of respect are due) to Doc and Dennis, I am about the last person who can or should be sounding off about the monumentally important issue of who should succeed Justice O'Connor, as I am about as woefully underinformed about our options as a legal professional can be. Off the top of my head, I'll wholeheartedly agree with Dennis that the country would be well served
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
