Blawg Review #207: All the News That Fits

April 13, 2009

Section A – News

1. The Recession
2. Prosecutors on the Ropes
3. Same-sex Marriage

Section B – World

1. International Justice
2. Spotlight: Canada

Section C – Business

1. Law Practice Innovation
2. Google
3. Copyright

Section D – Life
Section E – Sports
Section F – Technology
Section G – Education
Section H – Community
Section I – Religion
Section J – Comics
Section K – Editorial

Newspapers are dying, right? We all know that — at least, all of us except the Associated Press, The Atlantic, and a few others. Jeff Jarvis at Buzz Machine and Scott Karp at Publishing 2.0 get it, and they’ve been trying to explain the new rules to the surviving members of the print publishing industry, but it’s a little like teaching dinosaurs to have warm blood. The legal press hasn’t yet succumbed as badly as its mainstream relations, but its day is coming soon: Omar Ha-Redeye at Law Is Cool (one of the many Canadian law blogs we’ll be featuring during what Michel-Adrien Sheppard of Library Boy reminds us is Law Week in Canada) explains how the internet is already changing legal media too.

What many observers seem unable to grasp, however, is that while newspapers, magazines, even TV — all the hallmarks of traditional media — are suffering or dying, journalism is not. Journalism is a vocation and a social good — Seth Godin once called newspapers “two cents of journalism wrapped in ninety-eight cents of overhead and distraction.” Journalism is alive and it will be well — and Blawg Review is a tremendous example of what it will look like in the 21st century.

So this week’s edition has been structured to resemble your local newspaper — the one that showed up on your doorstep this morning  — to demonstrate the collective range, depth and acuity of the legal blogosphere. As with all papers, you can read the sections that interest you and simply skim the rest. Check out the “newspaper” that the legal community turned out this week — and keep in mind that this is only a sampling, and all of it was provided absolutely free. (And if you read nothing else, please skip down and read Section K – Editorial.)

A1 – News – The Recession

The recession continues to pound away at economies worldwide, and the legal marketplace continues to feel the pain. Law Shucks’ Layoff Tracker reported 100 more lawyers and 253 more staff were cut last week — and that was one of the quieter periods since the year began. Here in Canada, leading national firm McCarthy Tétrault cut 3% of its workforce, reported Jim Middlemiss at the Legal Post. Not only that, rumour has it that McCarthys intends to close its office in the national capital Ottawa, which would be an unprecedented move for any big Canadian firm in a downturn.

So just what are we experiencing here, and how bad will it get? Bruce MacEwen at Adam Smith Esq. suggests that this isn’t a normal “income statement” recession, but a potentially longer and nastier “balance sheet” recession. “Everyone — households, small businesses, big businesses, banks, investment banks, and yes, law firms — has seen their net worth hosed,” he points out. “The problem with recovering wealth is that it takes so much longer than it does to recover income.”

But Bruce also thinks we in the law should keep things in perspective. “Law firms are not, permit me to suggest, the worst industry to be in right now,” he observes. “Would you rather work for a large retail chain? A resort or hotel or entertainment complex? A bank? An investment bank? A hedge fund or private equity house? A magazine or newspaper publisher? An auto company?” Echoing the call for a more positive attitude, Charles Maddock at Maddock on Marketing presents a slate of ways lawyers facing some downtime can use it productively, including waking up dormant clients and engaging in business development training.

A2 – News – Prosecutors on the Ropes

It’s not been a great week for the prosecution in the United States. Not only was the high-profile conviction of Senator Ted Stevens overturned, but the judge ordered an investigation into the conduct of the case’s federal prosecutors. Douglas Berman at Sentencing Law and Policy worries that this is more than just a case of a few bad apples — that it’s a fundamental problem of federal prosecutorial culture — while Mike at Crime and Federalism wonders about the realpolitik at work behind the scenes on this case.

The DoJ is taking hits beyond the Stevens case, though. Mark Tushnet at Balkinization suggests the Justice Department, which many observers saw as highly politicized under President Bush, remains politicized under President Obama, despite the promises of change. Tim Jones at the Electronic Frontier Foundation argues that warrantless wiretapping has actually become more of a problem under the new president. And Beth Van Schaack at IntLawGrrls traces the etymology of “enemy combatant,” a term that has surfaced a time or two in each administration’s tenure.

A3 – News – Same-sex marriage

The same-sex marriage wave continued to crest in the U.S., as Iowa’s Supreme Court ruled that a state ban on same-sex marriage was unconstitutional. Tony Infanti of Feminist Law Professors explored the court’s detailed deconstruction of religious arguments in favour of the ban, while blogging colleague Kathryn Frank characterized the court’s “distinctly Midwestern approach” to the issue and Balkinization’s Jack Balkin debated those who criticized the court’s intervention.

Meanwhile, Mark Wojcik of International Law Prof Blog noted that Vermont’s legislature overrode its governor’s veto of same-sex marriage legislation, and that the D.C. City Council (which legislates for the District of Columbia) voted to recognize same-sex marriages performed in other jurisdictions. In light of all these developments, Brian Cavner of Family Fairness set out to tackle and rebut the numerous arguments he’s heard against same-sex marriage.

B1 – World – International Justice

What is the reach of international criminal law, especially over people and entities outside a court’s jurisdiction? Three interesting developments, each noted in the blawgosphere, might help answer that question. Betsy MacKenzie at Out of the Jungle notes that a Spanish court has agreed to consider a criminal case against six former Bush administration officials over allegations they enabled and abetted torture by justifying the abuse of terrorism suspects. Attempts to argue a “wartime” defence against the charges could be met by an article published by Mary Dudziak of Balkinization that examines the whole concept of “wartime” itself.

The “Bush Six” may also not be happy to learn that, as Mark Trumbl reported at PrawfsBlawg, former Peruvian President Alberto Fujimori was sentenced last week to 25 years in prison by a Lima court for crimes against humanity. But that was an entirely domestic conviction.  A more interesting parallel may be found in a report by Joe Palazzolo of the Blog of Legal Times: a Manhattan judge has allowed some claims under the Alien Tort Claims Act to proceed alleging that companies such as Ford, GM and IBM aided and abetted the apartheid government of South Africa late in the last century.

But you don’t need to look back in time to find situations crying out for the application of international criminal justice, as Christopher Rama Rao of Decoupling points out in reporting on the Congo Rape Crisis and what lawyers are doing about it right now.

B2 – World – Spotlight: Canada

A number of Supreme Court of Canada decisions prompted a flurry of legal blog posts hereabouts. The SCC made legal headlines worldwide when it ruled, in the course of a criminal case, that people have no right of privacy in the garbage they set out by the curb. David Fraser of the Privacy Law Blog and Dan Michaluk of All About Information explained the ruling and noted its consequences for everyday citizens’ privacy expectations.

Two other Supreme Court decisions led to detailed blog posts. Jonnette Watson Hamilton and Jennifer Koshan of Osgoode Hall Law School’s The Court analyzed a high court ruling that created a new framework for analyzing the equality provisions of Canada’s Charter of Rights and Freedoms. And Jeremy Grushcow of The Cross-Border Biotech Blog noted a Supreme Court decision that redefined the nature of non-compete clauses in employment contracts. Farther from the top court but closer to the front pages, Bob Tarantino tackled the merits of an upcoming prosecution of a band of polygamists in British Columbia.

C1 – Business – Law Practice Innovation

Upheaval and innovation in law practice and the delivery of legal services are gathering speed. Both Bob Ambrogi at Legal Blog Watch and Larry Bodine noted that big law firms are losing clients to smaller competitors. Rees Morrison of Law Department Management adds that clients are taking their cost-cutting measures very seriously. Will this finally cause big firms to cut associates’ salaries? Only if someone else goes first, notes Ashby Jones of the WSJ Law Blog.

But Tim Corcoran of Corcoran’s Business of Law Blog thinks that firms focusing on associate salary cuts are missing the point: “it’s time to take a good hard look at how law is practiced.” Absolutely, says Patrick J. Lamb of In Search of Perfect Client Service: “When firms abandon leverage in favor of efficiency and quality … [w]hen the focus is on providing materially greater value at materially lower costs … [w]hen the focus is on winning (however a client defines that objective) instead of body count, real change will have occurred.”

Jim Cotterman of Cotterman on Compensation chimes in that “innovation is achieved only when creativity and invention are connected to the customer in a way that meaningfully changes their lives.” We could start with pricing our services rationally: Toby Brown of 3 Geeks and a Law Blog talks about the application of “mark-to-market” practices to the law, while both Chuck Newton of Chuck Newton Rides The Third Wave and  Peter Olson of Solo in Chicago warn about underpricing your services.

How will big firms make these kinds of adjustments? Not easily, according to Ron Friedmann of Strategic Legal Technology. “Large law firms must adopt more cylindrical structures to succeed,” he says. “This would require major changes in how they operate. The huge and costly infrastructure supporting partners and other lawyers would need to shrink.” Laurie Mapp of Halo Secretarial Services suggests they start by learning to partner with a virtual legal assistant. And Holden Oliver of What About Paris? ends with a fairly straightforward request for some lawyer innovation: “Stop writing documents which sound like mental patients talking to themselves.”

C2 – Business – Google

It’s nothing like what the DoJ has gone through lately, but Google has probably had better weeks too. David Canton of eLegal notes, and questions, a US Court of Appeals ruling that Google’s sale of a trademarked term as a keyword to a competing company may be a “use in commerce” and therefore illegal. Robert Richard of the Law Librarian Blog points out that Google also lost a key trademark infringement ruling in a Second Circuit court. And Canadian privacy authorities are investigating whether Google StreetView violates privacy laws: you can get the bilingual story from Brian Bowman of On The Cutting Edge and Vincent Gautrais de Chaire en droit de la sécurité et des affaires électroniques.

C3 – Business – Copyright

The US District Court for Colorado’s decision in the Golan case ruled part of the US Copyright Act unconstitutional: Tyler Ochoa’s guest post at Eric Goldman’s blog and Mike Masnick of TechDirt examine the impact.  Michael Geist picked up the Canadian Recording Industry Association’s plans to develop a (heh) grassroots campaign against music piracy. And the EFF’s Fred von Lohmann noted President Obama’s gift to Queen Elizabeth of an iPod filled with music and questioned whether it violated copyright laws: “You know your copyright laws are broken when there is no easy answer to this question.”

D – Life – Access to Justice

As previously mentioned, and as Stan Rule of Rule of Law reminds us, it’s Law Day/Week in Canada;  fellow British Columbian Shannon Salter of Rights and Remedies tells her readers about the extraordinary services provided by that province’s LawLINE.  (But John C. Bouck  of Boucks Law Blog condemns what he sees as the BC government’s attacks on litigants in the civil justice system there.) It’s a good time to remind ourselves that the whole point of lawyering is to deliver justice and satisfy clients; as Victoria Pynchon of Settle It Now puts it, “Money is the instrument.  But justice is the issue.” Hull and Hull LLP‘s latest podcast asks: just what do we expect from clients, and they from us? Ken Adams of Adams Drafting thinks a little less Latin could go a long way to delivering what clients need.

A major access to justice story these days is the growing lineup of deferred or fired biglaw associates who’ll be paid by their firms to take work at legal clinics and public interest  law services.  Kashmir Hill of Above The Law went to Newark, NJ, to see an innovative public interest law job fair in action, while  Mike Monahan of Lawscape described some of the developing rules of engagement between non-profits and hard-luck first-years; between them, it’s clear that there are more than a few issues still to be ironed out. But any assistance for otherwise lawyerless litigants will be welcomed by the courts, according to the WSJ Law Blog: “the well-intentioned but often clueless hordes are clogging already overly taxed courthouses as clerks spend more time helping people unfamiliar with forms, filings and fees.”

But Scott Greenfield at Simple Justice, while warning against do-it-yourself litigation, nonetheless says: “Don’t begrudge pro se litigants the opportunity to make their case on the merits despite the roadblocks the law places in front of them.” And he has harsh words for the judges who encounter pro se litigants. “[M]any judges aren’t capable of dealing with regular people,” he says. “Most judges in the New York City civil courts never represented human beings, but worked as law secretaries for other judges, or prosecutors, or corporate counsel, their entire careers.  When they take the bench, they see people as annoyances, drains on their time, interferences with their orderly process.”

E – Sports

Turning to sports (I’ve always wanted to say that)….  As UNC emerged victorious from March Madness, Alfred Yen of madisonian.net questioned whether recruiting violations committed by NCAA tournament contender UConn jeopardized the integrity of the tournament. At the lighter end of the spectrum, Above The Law completed its own March Madness for Law Firms by announcing the firm least likely to lay off people (congratulations, Williams & Connolly). NCAAers who make it to the NBA might want to read Doug Cornelius of Compliance Building‘s account of a Memphis Grizzlies backup center who’s apparently a walking violation of the US trade embargo of Iran.

Even before Angel Cabrera won (or Kenny Perry lost) the Masters, David Dawsey of Golf-Patents.com republished his popular post about the impressive trademark portfolio of Augusta National. Brian Baxter of The Opening Day Chronicles chronicled the legal aspects of baseball’s Opening Day and more. And if you prefer your games indoors, Michael Webster of The BizOp News has some detailed insights into how poker can come in handy for litigators.

F – Technology

Was there anyone in the legal blogosphere who wasn’t (a) at TECHSHOW, (b) following the conference through Twitter or (c) tired of reading about all the #techshow Twitter talk? Detailing all the posts from and about TECHSHOW would be a Blawg Review unto itself, so take some time to sort through the posts by Mazyar Hedayat, John Sirman, Amy Derby, Reid Trautz, Sharon Nelson, Conrad Saam, Nicole Black, Rick Borstein, David Sparks, The Posse List, Joshua Poje, Alan Klevan, Allison Shields, Rex Gradeless, Jim Calloway, Lisa Solomon, Brett Burney and Erik Mazzone.

Worth special attention: Dennis Kennedy live-blogged the keynote presentation of Richard Susskind; Craig Ball of EDD Update found the conference nice but a little tired; and Carolyn Elefant of MyShingle.com thinks all this talk of innovation in the law will come to nothing unless “archaic, protectionist ethics rules” are addressed. But TECHSHOW wasn’t the week’s only high-tech event: Connie Crosby at Slaw live-blogged Rob Hyndman’s presentation at Mesh 2.0 on law for web startups, while Rob Hyndman posted videos from the conference.

G – Education – Law School

Law school is arguably even more overdue for innovation than is the legal profession: James Edward Maule at Mauled Again is calling for nothing less than change that reaches “into the heart of law school culture.” That might be why Jay Wexler at PrawfsBlawg decided it was time to tip some sacred cows by chanelling Joe Queenan and creating an “Admit It — It Sucks!” list for law school. Mark Cohen at MinnLaw Blog has a modest proposal: how about a law school that competes on price? And Susan Cartier Liebel of Build a Solo Practice @ SPU sings the praises of an intensive practical training program at Franklin Pierce College of Law in New Hamphsire that lets graduates skip the state bar exam.

Colin Miller of PrawfsBlawg makes the case for “open-everything” law school exams, while another Prawfsblawgger, Eric E. Johnson, argues that “[s]cholarly articles should be freely available on the internet – downloadable, without charge, at a click. And legal scholars should see that this happens for their articles.” Stephanie West Allen of IdeaLawg‘s quest to find fun law classes brings her a law prof who uses rock, reggae and rap to improve students’ learning. And finally, Kevin O’Keefe of LexBlog has a message for all law students: get on LinkedIn already!

H – Community – Social Networks

The legal blogosphere’s community is grounded in social networks, and there’s plenty to talk about this week concerning Twitter, LinkedIn, Facebook and MySpace. It was on that latter network that a resident of Coalinga, CA, wrote a withering critique of her hometown that, to her dismay, was picked up and republished in the local newspaper. Much abuse and some death threats later, the author sued the paper for, remarkably enough, “invasion of privacy.” As Ken at Popehat and Eugene Volokh of the Volokh Conspiracy reported the decision, you can’t post to MySpace and retain an expectation of privacy — but this case may have other implications yet.

Elsewhere on the Net, Erik Magraken of the ICBC Law Blog and Garry Wise of the Wise Law Blog both noted a BC trial decision that allowed a defendant to examine the plaintiff’s computer to determine his patterns of Facebook usage. Steve Matthews of Stem Legal noted the astonishing one-year increase in the number of lawyers on LinkedIn, from 118,000 in April 2008 to 563,000 in March 2009. David Bilinsky started at Slaw an intriguing discussion of the relative value of Twitter for lawyers. And Ernie Svenson of Ernie The Attorney said thanks but no thanks to Martindale-Hubbell’s offer to post its rating of you on your website for $59.

I – Religion

In a week that saw Passover, Good Friday and Easter Sunday, the legal blogosphere did not disappoint on the religious front. Heather Milligan of The Legal Watercooler brought us the Passover story as told in Facebook updates. Not to be outdone, Simon Chester of Slaw drew our attention to the Passion Play delivered via Twitter. For Sunday’s holiday, Scott Weese of the Worms & Germs Blog warned against buying children bunnies for Easter, while Brett Trout of BlawgIT brought us the best of Easter patents and Mary Alice Robbins of Tex Parte Blog referenced a new book that “raises questions about capital punishment in the United States by comparing the American system to Jesus’ trial and death.” And no Eastertime Blawg Review could be complete without Charon QC‘s foray to the Vatican.

J – Comics

Finally, every good newspaper has a good comics page — the other 90% have bad ones, or no comics at all. So in that vein, we offer you the best Courtoon of the week, as well as a Dilbert strip that sums up the economic mood nicely.

K – Editorial

It’s true that the blogosphere, legal or otherwise, often relies upon professional journalists to bring them many of the stories they discuss. Blogs are destined to supplement and integrate with journalism, not replace it. But a surprising number of bloggers do their own original research and report the results to their readers, and the legal blogosphere is especially good at that. We shouldn’t underestimate the tremendous capacity for powerful journalism that the legal community collectively wields — we know more, and are better at circulating that knowledge, than we think. Blawg Review is the best demonstration of that, and deserves to be celebrated.

Exactly four years ago this week, Blawg Review made its debut. Two hundred and seven installations later — stop and think about that for a second, of all the work by Ed, Colin,Victoria and others — it’s still going strong. If you’re a law blogger who hasn’t yet stepped up and hosted this brilliant and critically important example of citizen legal journalism, you owe it  — to yourself, to your blawgging colleagues, and most importantly, to the public at large that needs to hear what we know — to sign up now.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.