Unused and Probably Unusable

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.

If you're interested in the schedule of future hosts, would like to volunteer yourself, or want to submit a post for Blawg Review, the Blawg Review page is your source. Blawg Review will have information about next week's host, which is Rethink(IP), and has instructions on how to get your blawg posts reviewed in upcoming issues.

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."

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.

The most well-known and eminent judge of the Third Circuit, Edward R. Becker, passed away on Friday afternoon. (NYT obituary; Inquirer obituary; Daily News article shortly before his death) Howard has been especially comprehensive in his coverage, in part because (as a long-time practitioner before and admirer of Becker) he had already posted glowing encomia.

I only saw Judge Becker on the bench once, during oral arguments in the highly visible and temporarily controversial Chester County Courthouse Ten Commandments case. Third Circuit Opinion (pdf); article describing reactions and providing background after Judge Dalzell's decision at the trial level. The late great Stefan Presser argued on the side of the atheist suing to have the commandments covered up or removed. See article noting his reactions after the decision. Alfie Putnam appeared on behalf of the amicus, for whom he filed an attention-getting brief in which he compared the plaintiff to the Taliban. It was a memorable event.

As has already been said far better than I can, condolences go out to Judge Becker's friends, family, and colleagues.

Also worthy of note, on a less somber note, the Tech Law Advisor has posted a particularly glittering Blawg Review. It's "small town newspaper meets ESPN" - and boy is it good. It's got all the best features of a blog review: it's readable, informative, well-organized. Go at once and check out Blawg Review # 58.

There's been yet another revolt against the Project - the Blawg Review was subverted, or there was an attempted subversion. Ed-itor in Chief rejected the attempt, by Marty, and so the official Blawg Review # 60 is hosted at Blawg Review.

I would note we have had prior flirtations with unusual, occasionally edgy and even sometimes borderline contemptuous hosting jobs. Some work. Some hosts do exemplary jobs. This time, I'm a bit dubious. I also liked Ed's theme, involving the Socratic Method.

Hopefully there'll be some of my submissions in the next Blawg Review, which will be hosted at Blonde Justice.

The latest Blawg Review is now up, hosted by Blonde Justice.

Here are some links:

• Read Blawg Review # 61



• Read my contribution to this week's BR.



• Check out the Blawg Review I hosted, # 47.



• Visit the Blawg Review archives, or even sign up to host it.