Unused and Probably Unusable

The Boston Herald's latest (and hopefully last) word in the minor media flap about what Justice Scalia did, whether it was obscene, and even whether he is an Italian jurist (in the sense of ethnicity, yes; in the sense of nationality, no; Scalia insisted that he is an American jurist, which is both true and silly, since there was no need to identify his citizenship or residence in a domestic news piece, but his extraction was relevant to what he said and did) is this piece: Photographer: Herald Got It Right.

Scalia, no stranger to controversy (the duck-hunting contretemps in which he went out hunting with Dick Cheney (seems braver in retrospect, now), whose energy task force paper case would soon be heard by the Court; the question whether he would recuse from the Newdow pledge case after a speech he made went to the merits of the claim; the (in my opinion) non-scandal involving his presence at a scholarly program which included tennis) and in particular media controversy (recall an incident involving a student journalist who had their recorder confiscated), now finds himself again in the middle.

This time, in a humorous moment more reminiscent of his sometime hunting partner (see, e.g. Cheney Dismisses Critic with Obscenity, washpost), only without the element of personal confrontation, Scalia engaged in the following exchange:

Reporter (paraphrase): Scalia, J, you just participated in Sunday's special Mass; that could make people question your impartiality in matters of Church and State.

Scalia (his version): "I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said, ‘That’s Sicilian,’ and explained its meaning."

Scalia (a witnesses' version): "The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, ‘Vaffanculo,’ " punctuating the comment by flicking his right hand out from under his chin, Smith said.

[The Italian phrase means "(expletive) you."]

So, if true, Scalia did literally "respond jocularly" and with a gesture that consisted of..., but the two parts go together.

The literal meaning of Scalia's brush-off gesture is not obscene. It's a buzz-off, an "I take no position" kind of thing. Like pushing the air away, it distances the speaker from the subject or target. But when you pair it with its commonly associated phrase, you can have something a bit more vulgar. I wouldn't say obscene, but certainly not polite.

In the end, I think the whole thing is a bit of teapotted tempestry, which continues to draw attention for the personality (and fame and controversy) of the central figure rather than for any real content.

After gesturing, according to the same witness, Scalia "immediately knew he’d made a mistake, and said, ‘You’re not going to print that, are you?’" Alas, he should know that few reporters (or photographers) will today honor such a request. After all, it's interesting, it'll draw readers, and it's mildly embarassing.

I guess Scalia's lucky he wasn't a Texas A&M fan rooting for his team.

the Dark Goddess of Replevin Speaks... and she's worth a listen. Her blawg (tagline: an irreverent look at lawyers and technology) has previously appeared here, with her post on the Sea Sponge/ Sua Sponte spell check debacle, in Blawg Review #47. Check out the brand new Blawg Review #50, which poses the challenge "there aren't that many blawggers showing much interest in pitting the establishment clause against the free exercise clause."

Now, that's a fine statement for a rebuttal. I'll volunteer, if'n ain't nobody else gonna do it.

As tDGoR notes, most folks are in it for the one, or t'other. Either you're a natheist (sic) or a dominionist (wanting to extend God's law, in your preferred form, to rule over all of man's law); a Freedom For All To Worship As Conscience Dictates Wackadoodle, or a Tear Down This Wall of Separation Which H'ain't in the Constitutiom (sic) NoHow Christian Fundamentalist, probably in favor of criminalizing abortion and contraception and miscarriages. Well, surely there's some middle ground between good common sense on the one hand, and insanity on the other. And that's where we'll stand! Er. Um. Right, onwards.

Play in the joints - Scalia's fun dissent in Locke v. Davey, for example, ran like so:

A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead "play in the joints" when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.

Even if "play in the joints" were a valid legal principle,
surely it would apply only when it was a close call whether
complying with one of the Religion Clauses would violate
the other. But that is not the case here.

Scalia notes that the Court sometimes displayes a "refusal to apply any principle when faced with competing constitutional directives." True. Good point. Scalia, of course, is not my favorite for solving such competing commands, either for methodology (sometimes results-oriented) or his choice of results. Regardless.

Is there a great wide gap between the Est. Clause (shall make no law respecting...) and the Freedom of Expression clause? Funny thing, there; the word Religion appears once, meaning it's two clauses with one word involved, a single subject. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" And yet, the two have radically different meanings. An establishment of religion means more than just a state Church, as some would still vainly have it. And freedom of religion (meaning faith) is protected as freedom to exercise that faith. Not that the law always follows this text. And if it did, folks with a genuine religious belief that required illegal or dangerous or, well, asocial behaviors would be protected. Sticky wicket, that.

I was momentarily swayed in law school by the argument that insisting that science classes be taught without supernatural causes was a form of religion, impinging not only on certain religious students' freedom of expression (probably false) but actually falling afoul of the Establishment Clause (enshrining Darwinist-ism as a religion). I think I can state comfortably that this is false and silly. Studying science, with its intention of examining and making useful theories and predictions about the natural world, involves the use of natural science. Math, methodological naturalism, and reproducible testing of hypotheses. Not, you know, inspired revelation. Also, there's virtually no such thing as Darwinism, but rather the modern theory of evolution. Darwinism is what you call it when you want people to confuse it with Communism or botulism.

Locke v. Davey was itself one of those fun cases where free expression seemed to run right up against the state intentionally refraining from establishing - or endorsing - or indeed funding and aiding - religion. Scalia would say "Not Mandated!" but in this case, the state decided it would Not Give Scholarships For Religion. A discriminatory practice, perhaps, perhaps. But does it really prevent the Free Exercise of religion to not get state money to pursue a particular degree? The line drawn was a bit arbitrary - if Joshua Davey had majored in math and just happened to take the same kinds of classes, what result? - but I'm not convinced that Scalia's right about religion. Unsurprisingly. But a neat aspect of his opinion is that his anti-discrimination plea on behalf of the religious echoes his arguments in affirmative action cases. Symmetrical readings, no favoring nor disfavoring. I would call it pro-individual rights, except that I have seen some of Scalia's other opinions. So I think it's mostly about race and faith, rather than an abstract jurisprudence of rights.

More will, I'm sure, occur to me.

I receieved an e-mail about the decision in this case- before it was issued. Unusual. Here was SCOTUSblog's preview, here their links to the opinions, and here Lyle Denniston's coverage of the result.

The majority in Georgia crafts a narrow - perhaps limited to the facts of the case - rule that when two co-tenants are asked by police if they may enter without a warrant, and one co-tenant accepts while the other refuses, the police may not lawfully search the apartment "as to that person." It's narrow; too narrow for my taste. The dissent(s) certainly have it easier: they prefer big, sweeping rules.

The Chief Justice's dissent (joined by Scalia) would deny either co-tenant the power to veto another co-tenant's consent. That's because you give up some privacy when you agree to live with others, runs that opinion.

Justice Thomas' opinion is, as might be expected, based entirely on what he sees as a prior precedent that forecloses the facts at bar. I've noticed this is a habit of his. "Because, in my view, the facts of this case fall squarely within the rule of XXX (1970), I would affirm the judgment of etc."

Stevens' concurrence takes a swipe at Scalia's originalism, but does so in my view somewhat unconvincingly. Because in the Olde Days the Man could consent or reject a warrantless search, runs the concurrence, but now Woman Have Rights Too, the Fourth Amendment surely can't mean exactly what it meant in the long-longago.

Scalia sneers at this in his own dissent, saying that the Constitution means the same thing because it is merely its content that has changed, as when the Due Process clause refers to property, whose contours are shaped by other law. An interesting argument, but I am not sure it holds any air, let alone water, let alone carries any intellectual weight. The meaning is the same but what it refers to has changed. So we don't just look at what the thing referred to meant originally? How can we tell when it's okay to look at changed law to inform the content?

As a topper, Scalia concludes that the majority's rule, which in practice he believes will prevent the police from entering the apartment in many emergency calls involving domestic abuse, will result in 'Men denying police entrance when a woman wants them to- PRECISELY the result under the old rule' (roughly paraphrased, as are most of my quotes. In general, none of my quotes should be taken as literally quoting opinions unless I provide a reference or set off a quote with indents). I'm not at all convinced that's what the old rule was; I thought the rule said "women may not consent or refuse." The new rule is that either co-tenant, in a gender-blind analysis, can refuse, except in emergencies and subject to similar exceptions.

I wonder. The content of the old rule was that women living with a husband could neither consent nor refuse entry. The practical result may have been that wife-beaters could prevent entry. The solution is to have an emergency exception, which we have. The majority points out that the emergency exception will do all the heavy lifting.

Here's what I think is really going on. Scalia, in my view, has such dislike for criminal defendants charged with drug crimes that he seizes upon victims of abuse as a tool to beat the majority about the head and shoulders. The majority, in contrast, strives to assure law enforcement that domestic abuse won't be harmed by their rejection of a vast incursion into privacy and autonomy over the home in the service of the drug war. The Fourth Amendment is the field upon which the two sides battle out whether rights will stand or fall, with one side intent on broadening police powers and narrowing defendant rights, and the other hopefully trying to preserve a narrow area where the police cannot trample over rights to obtain a drug conviction. As always, Kyllo would present some problems for this interpretation... except that I think it's an outlier.

Mike at Crime & Federalism is bitterly, bitterly disappointed by the opinion in United States v. Grubbs, which holds that if a warrant, issued now, isn't executed until there is probable cause, there's no violation of the Fourth Amendment.

While there may be more thorough coverage out there of the decision (SCOTUSblog for the opinion and concurrence, Howard links to coverage when it appears and posted the link to the oral argument transcript), I think Mike's angry outburst is one of the more heartfelt protests we'll see on this issue.

Although the opinion gathers some rhetorical disgust (Ken Lammers of CrimLaw), I see from Fourth Amendment dot com, a supplement to John Wesley Hall, Jr.'s 2004 Supplement to Search And Seizure (second entry on Tuesday, March 21) that an expert in the area had previously predicted this outcome and today predicts no sudden upswing in anticipatory warrants ("Maybe only where they've never heard of them before, but we've been dealing with them here for 20 years."), because the Supreme Court followed "the law from everywhere else in the country except a narrow exception in the Ninth Circuit."

So although the text seems to go directly contrary to the result, maybe, like the eminent domain decision which looked so wrong to outsiders but which was apparently dictated by decades of caselaw, this is a case where there's less activism and bad judging than might meet the eye.

As I was going to write before I saw John Wesley Hall's commentary, sometimes common sense tells you that the justices are going to allow certain kinds of thing in the name of law enforcement. A warrant that can be held ready, for use when a named contingency occurs, is going to be allowed one way or the other.

Prof. Peter Henning of the invaluable (for those of us who love to keep track of perjury, fraud, embezzlement, and other white collar crime) White Collar Crime Prof Blog, points with evident glee to a really romantic story.

The former auditor at CitiFinancial responsible for reimbursing Canadian employees was engaged in financial shenanigans, including creating fictitious records, and diverting reimbursements with which he and his wife purchased a nice new SUV, a nice home in suburban Maryland, other property and gifts; they also renewed their wedding vows. See When You'd Say "I Do" All Over Again.

Truly a touching story. Prof. PH theorizes that their forced incarceration might interfere with continued domestic happiness, or at least unity.

The reference in the above post's title, of course, is to a grippy catchy commercial from one of the Diamond Sellers - no link because I disapprove of Hallmark Holidays and Telling People Which Precious Gems They Need To Own - in which they conflate purchase of diamonds with love and commitment.

What occurred to me was that vows, like other oaths (U&PU post on oaths and pledges), don't really need renewal - although the sentiment is nice. The legal commitment doesn't itself weaken over time, expire, or otherwise need refreshment (Thomas Jefferson quote; not really relevant, but it sprang to mind).

Marriage fees, on the other hand, could be something that might be required, on an ongoing basis. Not just a wedding cost, or a marriage license, but ongoing, perhaps annual, fees. If we wanted to discourage marriage, I mean. Can you picture it? Deeply, madly committed couples, forgoing the symbolic, romantic, and legal mingling of their affairs (as Kip points out, marriage can be considered the elevation of One Other Person to most-important-status as to another) in order to avoid paying a fee. Because fees and other taxes, you see, discourage the activity which they burden....

I can also easily imagine married couples turning to a life of crime... like the above-mentioned felonious folks... in order to pay the oppressive marriage renewal fees.

Obviously, such a requirement could well rend the fabric of society as we know it, and bring civilization to a grinding halt. Better that we not adopt it, then.

Thanks also to Peter for linking to his source, the U.S. District Attorney for the District of Maryland's Blog, which provides such information as details of the investigation, pleas, and forthcoming sentencing dates.

I am inspired by Adam Kolber at Prawfs Blawg, who writes in "Theory v. Theory" about the maxim "It takes a theory to beat a theory" - and concludes that there are times when "no extant theory warrants our belief" and "there are sometimes no winners"...

What's interesting about his point (which he's applying to Constitutional jurisprudence to produce the unsurprising point that some judges don't clearly have an overarching theory of the Constitution, as opposed to say a particular approach to judging) (must shorten digressions) (pithier, dammit) is that the maxim does apply with full force to the evolution "debate" (or "controversy").

What is presented as an alternative, or a supplement, or a curative to teaching modern biology in science classrooms isn't a theory. It's a pretty word-picture, without anything along the lines of testable predictions, or falsifiability, or rigor, or mathematical or logical underpinnings. It's nothing but apology for special creation.

The lone idea (stripped of all that's Constitutionally objectionable) that a "non-human intelligence designed life" isn't a prediction, or an affront to the process of evolution. It's a question-begging conclusion. There's also no *need* for that kind of extra-ordinary deus ex machina; it doesn't explain anything parsimoniously (see also: Occam's Razor).

Intelligent design isn't a theory in search of evidence. It's a conclusion desperately trying to avoid the need to confront a robust theory with anything other than accusations of incompleteness - which is not a challenge. It takes more than cutting down one theory to provide evidence for another... not that intelligent design has successfully made *any* challenges to the key concepts of modern biology. That would be because supporters seldom accurately understand and portray key concepts of modern biology.

I find Prof. Kolber's analogy of Newton's vs. later "worldviews" a bit confusing. Newtonian mechanics are still around; they're great within their limits. The assumptions underlying about how the world worked have not in fact proven out. Einstein had some great insights as to how the nature of the world worked out, mathematically, and so theory now makes successful predictions for a wider range of phenomena. Much wider, astronomically speaking - although everyday life continues to operate consistently with Newton, so far as our macro world appears. And down at small scales, you need other theories. While observations now can falsify or knock out theories by showing that their predictions are false, it's much more unique - and interesting - when there's no competing theory (or variation on an old theory) ready to step into the gap when another falters.

Maybe the difference is that it's fun and easy to make wacky theories about space and the cosmos, but making sensible and potentially accurate predictions about how judges rule is less likely to be productive. Or rewarding. Except maybe for law professors.

Old opinion of the day: Way old. Well, as far as being current law. And probably not inherently exciting enough to make most folks sit up and pay attention. A review of a denial of benefits sends most people right to sleep. But read on...

A 1988 unpublished opinion, available on Westlaw at 1988 WL 252068, out of the Southern District of Florida:

Martin v. Bowen, issued June 10, 1988 by District Judge Scott.

Reason for celebrating this opinion?

After launching into an introduction,

The Plaintiff, Ted Martin, brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), to obtain judicial review of a "final decision" of the Secretary of Health and Human Services who determined the Plaintiff had not established that he was retired within the meaning of the Social Security Act.

the opinion then proceeds to title its section... cleverly.

The Music Man
Ted Martin, born November 25, 1921, was a bandleader and musician...
The Band Played On
The Melody of the Law
The heart beat of the applicable law ...
Play it Again Sam
The Final Note.

The opinion never made it to F.Supp., the Federal Supplement, but it is caught forever, a fly in amber, in the online databases.

As the entire Conspiracy gang has been buzzing, Orin Kerr has jumped ship - sort of - from the Volokh conspiracy to his own eponymous blog, and will now be dual-blogging on both sites. That makes him a multiblogger...

One recent post (his first substantive one, actually) is on the Good Driver stops which have tickled the gray cells of criminal procedure law professors and enthusiasts lately.

The idea is, in contrast to a pretextual traffic infraction stop (Your headlight is out, sir... mind if I look in the trunk?) or a roadblock inspection (check everyone as they go by; unconstitutional unless intended to support a proper and narrow enforcement purpose) the police start going after... the people who haven't done anything wrong.

And by go after, I mean "Pull over, and then give a reward ticket thanking them for driving safely." Someone suggested the prizes would be along the lines of minor-league baseball tickets. A minor reward, in other words.

What's agitated the crimlawprawf folks, and others who value their liberties, is the question of whether these Good Driver stops can turn into a lawful search. That is, the police officer sees or smells something, and then initiates a further search which discovers contraband.

I'm troubled by the entire approach, as it seems less like a proactive, clever gimmick to get people to drive carefully, and more like an opportunity to get the police officer within plain view/ smell of a car that would otherwise not be searchable without P.C.

Gee, officer, I can imagine saying, couldn't you have just noted my license plate and mailed me the tickets?

Blawg Review #48, with a determinedly atypical format and content - I expect this to be a controversial artistic choice, to say the least - is up at Rethink(IP). I recommend a glance - it's not much like past iterations. It is, in a word, minimalist. I'm a bit mystified if the promised "other posts" are going to appear on Blawgr, the community blog (update: aha, there it is), but I do know this: it will take the average Blawg Review reader far less time than usual to peruse the entire review.

I had a great time hosting Blawg Review, and want to extend a thank-you to all the blawgers who contributed and linked, helping drive eyeballs and new readers to Unused & Probably Unusable.

I want to particularly recognize Bob Coffield, of Health Care Law Blog, who posted Colorful Spectrum of Blawg Review #47, with a nice historical note on the phrase "Philadelphia Lawyer."

Welcome one and all to the 47th Blawg Review. Much as the 78th annual Academy Awards last night celebrated excellence in film (congratulations to the winners), Blawg Review is where a broad spectrum of excellent law-related blogging is recognized every week.

This week, I have chosen as my overarching theme the Spectrum – the range of colors, and indeed of all photons from extremely long wavelength radio, with very low frequencies, all the way up to cosmic x-rays and gamma rays, which have mindbogglingly high energies and wavelengths smaller than an atom.

as far as the eye can see


Blawgs, you see, come in all shapes, sizes, and more importantly subjects, styles, and purposes. There are solos and lawyers who work in big firms, academics and practitioners, plaintiffs' side and corporate defense, left and right, funny and serious. Showcasing just a sampling of all the excellent blawging every week means it's the tip of a very prolific iceberg, but I think it's important to emphasize the sheer variety that falls under the legal blogging umbrella. Some tie in naturally to my spectral theme; others just illustrate how wild and wooly the blawgosphere is. Enjoy!

Some issues produce hot feelings or hot words, but for varying reasons. Sometimes the legal issue itself will be of broad general interest. Sometimes, a topic is bitterly divisive, but mainly within the legal world. And sometimes, it's just the personalities involved.

Steve Jakubowski of The Bankruptcy Litigation Blog did a public service in collecting commentary on what I had earlier thought would be the most popular legal news of the week – the Anna Nicole Smith Case circus – er, Roundup. In fact, judging by the fact that a Second Case Roundup was necessary, maybe the arguments in the Supreme Court did generate a fair amount of interest.

The most popular news story based on speed of dissemination of the related Law.com article, however, springs from the unfortunate misuse of a spellcheck in a brief. May it Please the Court is on the case, with Sea Sponges Take Over Appellate Brief. The Dark Goddess of Replevin muses that the obvious solution – omitting legal Latinese – is probably "the better part of valor" in sea sponge instructions.

A huge story late last week for the BlackBerry users out there was the settlement for $612.5 million of the RIM patent litigation. Jurist has the story. See also Lyle Denniston's report at SCOTUSblog.

I would note a poorly presented "fact" about law in society making the rounds lately, the Simpsons-and-First-Amendment survey, which supposedly (according to media reports) indicated that 1,000 adults could name more members of the animated Simpson family than freedoms guaranteed by the First Amendment to the Constitution. It doesn't take a linguistics expert, or a rocket scientist, to observe that this isn't what the survey results actually said. It's not as bad as they say. But sometimes the media never let facts spoil a good story. See Mark Liberman's post Counting Freedoms, Simpsons, and Percentages and his followup, Freedom of Speech: More famous than Bart Simpson for a rather more rigorous approach.

Controversies involving freedom of religious expression and the establishment clause tend to draw strong reactions from all parts of the political spectrum. Of interest to me is what could probably legitimately be labeled a fringe, acommodation-type controversy: the right to carry a ceremonial Kirpan, or knife. Paul Horwitz at PrawfsBlawg reported the decision of the Supreme Court of Canada, and then defended it against comments from Brian Leiter. The Supreme Court "looked at the kirpan in context," meaning, among other things, where plaintiffs had agreed the knives could be sealed into their sheaths and then sewn up inside their clothing. Seems sensible. Although Paul should be ashamed of the post title "Kirpan Keepin' On." Shame, shame.

Drawing much more fury, however, were a series of guest posts at the Volokh Conspiracy by Greg Sisk. Prof. Sisk started with Religious Liberty in the Courts: Are Traditionalist Christians Now the Disfavored Group?, drew a storm of critical comments, and then proceeded onward with the two-part Explaining Why Traditionalist Christians are at a Disadvantage in Making Religious Liberty Claims in Court (One and Two) and extended into explanations in Do Traditionalist Christians Lose in Court Because They Present Marginal Religious Liberty Claims? Except for his thesis, conclusions, methods, and possibly morals, the commenters seemed to find no fault with Prof. Sisk. He left the VC with a nice wrapup at How Religious Liberty Claimants Fare in the Courts—Responding to the Critics and Closing Thougths. Salutes not only to the Professor, who withstood some outrageous slings and arrows, but also to Eugene Volokh, for inviting him in in the first place. The posts generated an immense amount of spleen, but surely helped bring the underlying study to greater attention and critical appraisal. Useful stuff.

Walter Olson of Overlawyered brings us another outrageous-sounding neighbor lawsuit: Sued for taking baths too early. It reads like an unpleasant case of a bullying lawyer and an outrageous demand – not for millions of dollars, but to refrain from taking baths before 8 a.m.

The Mommy Blawg has a pair of posts (first and second) on the recent news stories and surrounding controversy regarding shackling of female inmates during childbirth.

Kip, Esquire, who regularly posts at a very high frequency at his blog A Stitch in Haste, and whom I often find myself disagreeing with over policy and philosophy, never winds up on my wrong side regarding the Culture War Against Gay Rights. His style tends towards brief and biting analysis of news, followed by a recurring punchline – in this case, "When they say it's not about bigotry, they lie." A recent targets of his ire is a judge's decision that constructive publication of the text of a gay marriage ban amendment, because it was the subject of many news stories, made it unnecessary for the government to publish the statute as required by state law. Kip heaps scorn on the idea in the post On Active Verbs and Activist Judges.

I wish to highlight an excellent (and now-concluded) debate on an issue that had personally occurred to me as a legal and moral minefield: the possibility that persons with prior knowledge of the impending filing of lawsuits could profit in trading on material non-public information. Professors Moin Yahya and Larry Ribstein took up the question at Point of Law, in Selling Short.

On the radio (between 3 Hz and 300 GHz)

Howard Stern, formerly the King of All Media (what is he, deposed? In exile?) has taken flight from broadcast radio to the satellite haven of Sirius, where he could escape the earthbound FCC. Only to be welcomed by the content limitations of his new employer. Meanwhile, his former employer, CBS, has alleged that he breached his contract and – what would one expect? Law prawfs and blawgers have weighed in. Professor Bainbridge posted What Howard Stern Did Wrong at Tech Central Station, and Jonathan Rowe at Positive Liberty responded with Was Howard Stern an "Agent" of CBS?, which begins

Professor Stephen Bainbridge’s case for Howard Stern’s liability to CBS largely turns on whether Stern qualifies as not simply a mere “employee” of CBS, but as an “agent” as well. This is important because an “agent” has duties to the “principal” that are above and beyond those owed by a mere employee to an employer. And if Stern didn’t owe those special “agency” duties, Brainbridge’s (arguing for CBS) case against Stern probably falls apart.

I'm sure this is only the beginning of an interesting case. Prof. B., by the way, was on the radio himself, talking about wine, of course (see also http://www.professorbainbridgeonwine.com/), as well as presenting this post about his latest published paper on the case for limited shareholder voting rights, which takes a look at corporate governance using economic analysis.

Intellectual Property-related

The TTABlog (dedicated to Keeping Tabs on the TTAB, the Trademark Trial and Appeal Board), by John L. Welch, presents The Top Ten TTAB Decisions of 2005. John explains,

The cases chosen for inclusion here are not necessarily the Board's "best" decisions for the year. [In fact, two on this list also made my "Ten Worst" list.] These are simply the decisions that I think are the most interesting or important from a practical standpoint.

Check out the commentary on phantom marks, as well as links to the cases, and to TTABlog's discussions of each.

J. Matthew Buchanan at Promote the Practice reacts to the Wall Street Journal op-ed "Patently Absurd," at Wall Street Journal on the state of patent law: "Blame the lawyers."

Ron Coleman, at Likelihood of Confusion, presents Yahoo! gives "comfort" to trademark owners. As Ron notes, infringement by search engine, and the steps taken to avoid legal problems, will continue to generate fascinating developments.

RSS and Media

Bob Coffield, at Health Care Law Blog, presents The Politics of RSS in West Virginia.

Daniel Solove at Concurring Opinions (with a tip from beSpacific) notes a study of the Best Blogging Newspapers, done by Jay Rosen and his journalism class. The eight factors used (I paraphrase): clarity and ease of use; quality of writing and linkage; voice; comments and reader input; range/originality; organization to access the blogs; explanation of purpose; and commitment (having archives, categories, permalinks, and RSS). Interesting stuff.

Firm Strategy and Practice Tips

Definitely focusing on the green (wavelength of 520 nanometers to 565 nm): Bruce MacEwan, of Adam Smith, Esq., poses three questions: How do you Know if Your Troops Got the Memo?; Do You Sincerely Want Your Firm to Be Great?; and, Never Mistake a Bull Market for Brains, or How Healthy is Your Firm Truly?. Entertaining and valuable reading for lawyers concerned with their firm strategy and direction.

From Jim Calloway's Law Practice Tips Blog, a post featuring the Oklahoma Bar Association's Management Assistance Program's resource on Starting a Law Practice Web Directory, and Five Practice Tips from the Practice Management Advisors

Of interest to Supreme Court junkies are Tom Goldstein's posts The Expansion of the Supreme Court Bar (mammoth post!), and his followup in which he announced his move to Akin, Gump, Strauss, Hauer & Feld in A New Endeavor.

On Blogging and Academics

Rick Garnett posted Scholarship or Chit-Chat? at Prawfsblawg (have I mentioned how much I like the tagline, "Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005"? Well, let me do so now). Prawf Garnett argues that the National Law Journal article which warned of "dumbing down" of the profession is stretching it a bit when it suggests that law-blogging contributes nothing to the scholarly enterprise. (Suggested misleading TV Magazine Teaser Headline: Law-blogging: Is it Making Us Dumber?)

Blogging and Employment

Paul M. Secunda, at Workplace Prof Blog, presents Just Exactly How Common Are Blog-Related Firings?. We've heard of them, the Dooces and the Opinionistas Article III Groupies (wait, that change of employment was unrelated, we're given to understand), but what are the facts? Paul also posts about the City of Atlantic Beach implementing drug testing for prospective employees – but the drug being tested for is nicotine. See City: Smokers need not apply.

Going Solo

Congratulations to Ernie the Attorney, now at his new location under his Real Life Name of http://www.ernestsvenson.com. Check out his post titled my new law firm. Best wishes to him as he tries to take on the new challenge he, and New Orleans, face as they move forward after Hurricane Katrina. His followup post is here.

Similarly, Anthony Cerminaro is striking out: Without a Net: Going Solo links to his updated site at http://anthonycerminaro.justia.net/ and announces that he has obeyed Dennis Kennedy's rule: let a certain amount of time pass, and you will no longer be doing what you were in your career when you started blogging. Makes sense.

The Greatest American Lawyer (because the pseudonym wasn't taken, presumably) posts on Practicing Law from the Kitchen Table and in the Car. This post follows on his posts on, for example, staffing, the paperless office, digital dictation and extranets. Browse the blawg for more.

File under x-ray?

Bob Coffield, at Health Care Law Blog, trumpets a New Carnival: Health Wonk Review, for lawyers interested in health care policy.

Here's a post involving the visual spectrum again. The Online Guide to Mediation presents Let's Face it: Test your understanding of facial expressions. I note that the post begins with the bleached conditional (Language Log post on the If Eskimos have X Words for Snow snowclone, conditional variant) "If words make up only 7 percent of our communication...." If the claim is true, "actions speak louder than words." If the claim is false, of course, or merely unproven, then it doesn't make microexpressions unimportant; it just removes the rhetorical support.

For sheer catchy headline-writing, Evan Brown's Defendant bails, "nail and mail" fails, so e-mail of summons prevails has to be some kind of a winner. InternetCases.com presents the post on a successful service of process by e-mail.

The necessity defense - a staple of every first-year law school criminal law class - makes an appearance in this situation, where a local sheriff seized truckloads of ice from a federal site without FEMA authorization. Dave Hoffman at Concurring Opinions kicks off the discussion, arguing that it seems like a pretty clear case - but noting that it's been some time since he had criminal law.

Looking at non-U.S. developments, Cody Herche, at legal redux, brings us The sue happy Europeans?, which reviews an American Lawyer article on European class action lawsuits, and warns of "the threat of overregulation."

Makes me see red (wavelengths of 625 to 740 nm): DC Metro Contract Attorneys Weblog has a roundup on certain human rights abuses by nobody's favorite ex-tyrant, Saddam Hussein, in a post with a title which would surely be slanderous (if it wasn't true): Saddam Hussein's murderous and genocidal campaigns: Dujail and Afal.

This thoughtful post by Matt Barr at New World Man on Professional Juries discusses arguments appearing on Tech Central Station for and against, and concludes that "a jury is essentially a tool in the hands of the attorneys, and your fate is bound up far more in how they use it than in anything else."

Chris McKinney, at HR Lawyers' Blog, presents Judge Posner on "Stray Remarks". An interesting point, relating to the Rules of Evidence and whether statements are related to decisions to terminate or take other adverse actions against the plaintiff. An interesting excerpt from a recent opinion.

In the Bluer wavelengths (typically 430 to 500 nanometers, or so)

Evan Schaeffer continues his long-awaited An Introduction to Lawyers for Those Who Have Not Yet Had the Pleasure… with part III, How to Dress a Lawyer. This installment, which picks up with the fictional embroidery with which Evan so delighted and amused his readers (those who realized that fictional means fictional) in his Advice to Young Lawyers, Advice to Federal Judges, etc. and turns distinctly, ah, blue. Funny, but definitely on the sexier side of law-related blogging. And, the much-beloved Weekly Law School Roundup continues, hosted alternately by Evan and Will Work For Favorable Dicta. This week's edition is #10. Check in for selections from law student weblogs of both distinction and infamy.

Presented without judgment as to its esthetic qualities, Ray Ward at Minor Wisdom has The Ballad of Kimberly Williamson Butler. Why pick on her? He explains, "because Butler, the clerk of the Criminal District Court in New Orleans, spent last week on the lam, after the judges of her court issued a warrant for her arrest." (Background at the Times-Picayune of N.O.)

Thanks to all who contributed and posted. Corrections and comments gratefully, if seldom gracefully, accepted.

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