Legal blogosfera review this week
Legal History Blog tells about an essay on billboards and how the public and the court have judged billboards’ aesthetic qualities.
Workplace Prof Blog tells about an article on “Reframing Women Employees’ Responses to the Harms of Sexual Harassment.” According to the abstract, an employee’s response to sexual harassment generally focuses on whether the employee failed to report the harassment. The writer suggests that the discussion should instead consider the ways in which the employee is harmed by the harassment and the ways in which the employee avoids the harm, beyond merely reporting it to a superior. Looks interesting.
Trial Ad Notes looks at a new study of pro se felony defendants. It seems that they do pretty well, sometimes even better than represented defendants.
SCOTUS discusses the “curious decline in the number of paid petitions filed” with the Supreme Court. Is it a combination of the low probability that a petition will be granted and the cost?
The Wired GC criticizes an op-ed by Professor Michael Seigel (a former prosecutor) in the Washington Post regarding the corporate Attorney -client privilege. Professor Seigel is concerned that pending legislation prohibits waiver of the privilege. According to the Wired GC, Professor Seigel “fails to note is that some prosecutors have essentially abused waiver and used it to fashion paper-thin criminal cases out of what is really civil wrongdoing (if any). Prosecutors have demanded almost real-time production of all Attorney -client communications, sitting back and seeing what they can reel in.”
Antitrust Review also has an interesting post on the effect of after the fact extensions of the copyright term. “If John Steinbeck felt sufficiently incentivized to write East of Eden in 1952, extending the copyright term in 1998 absent time travel or extraordinary foresight on his part would not have given us a better book.”
Carolyn Shaprio, a guest blogger at Empirical Legal Studies is working on an analysis of whether judges accurately report the facts. Her focus is on summary judgment where the court must evaluate whether a reasonable jury could find for the plaintiff. Although the Supreme Court has provided a framework, the courts chose which facts to report and don’t report every fact or piece of evidence. She is soliciting comments to let her know what you think .
Point of Law points out a new article on “civil justice reform.” The article focuses on the move from limiting damages to reforming/changing procedural aspects of litigation. According to the abstract, the authors take the position that opponents to the procedural changes continue to address the damage caps because “it’s easier to rally opposition to such caps among legislators, editorial pages, activitsts, and lawyers themselves than it is to get into discussions of areas like forum-shopping, fee-driving class actions and unprincipled experts-for-hire.”
Blawgs are an excellent and time-efficient way to keep up with pending litigation and learn about new decisions. This week was no exception.
The California Appellate Report explains the difference between a street prostitute and a prostitute who works through escort services, thanks to an opinion from the California Court of appeals.
The Patry Copyright Blog discusses a Ninth Circuit opinion regarding copyright ownership by a partnership. The issue is probably quite common because bands frequently form partnerships or other entities and then transfer existing works to those entities. The opinion is quite brief and I wish the Ninth Circuit had addressed the facts and legal issues in more detail.
Jamie Spencer at Austin Criminal Defense Lawyer thinks that Whorton v. Bockton was decided wrongly. He gives examples of problems that can result from the holding.
Simple Justice discusses a bad case making bad law. In particular, he examines a case in which a driver was convicted of murder for driving drunk the wrong way on a highway in Nassau County, New York. The victims included a seven year old flower girl in a wedding party. According to Simple Justice, this was the first drunk driving case in the State of New York to be tried as murder 2. Does the outcome of the defendant’s conduct justify the murder 2 charge? Simple Justice thinks not and is concerned that all of us “will be saddled with the outcome” of this defendant’s appeal.
Sui Generis asks whether there is a first amendment right to access porn at the public library. No, she’s not asking on her own behalf; the issue arose in Rochester when a television station did an “expose” based on library patrons using computers at the public library to access porn in full view of anyone and everyone, kids included. She asks for comments from constitutional scholars.
The Duncan Law Firm reminds me that the Tennessee Rules of Civil Procedure are being amended effective July 1, 2007. Day on Torts does the same. I should read up on that.
The Scruggs law firm in Mississippi gives updates on Katrina issues. Once again, Dickie has taken on a battle that no one else would touch. Speaking of Scruggs, the National Law Journal questions whether fast food litigation will be the next Big Tobacco litigation.
Split Circuits, a blog that I always find interesting, reports on the split in decisions regarding the first and last served defendant rule for removal under section 1446. This split is especially significant because removal is invalid if you don’t get the timing exactly right. So don’t assume you know the rule if you are working outside your usual circuit.
The Legal Scoop briefs the Supreme Court’s punitive damages opinion in Phillip Morris case . Legal Scoop argues that the plaintiff’s attorney could have avoided this issue by not calling on the jury to send a message to the cigarette industry for all the people being harmed. Legal Scoop asks why this case was not brought as a class action. He also points out that the Supreme Court’s opinion had an interesting group of dissenters — Stevens, Ginsburg, Thomas, and Scalia. Not surprisingly, Stevens and Scalia dissented on different points.
There seems to be an inordinate number of sports-related cases this week. Legal Scoop reports on a case by soccer player Freddy Llerena against the D.C. United franchise. Llerena seeks $5 million in compensatory and $5 million in punitives for damages he suffered in a game. Another sports-related case is the subject of a post at Overlawyered. A resident of the apartment building into which New York Yankee pitcher Cory Lidle’s plane crashed has sued the Lidle estate for $7 million. The comments are especially interesting and even include references to Seinfeld. The Sports Law Blog asks whether potato sack racing is a “contact sport” because that is one of the primary issues in an Ohio case. The court decided that “intentional tackling is not a customary part of the sport or activity of sack racing” so that “sack racing is not a contact sport.” Wonder how you would find an expert witness for that case.
One post that generated quite a lively discussion is at Overlawyered and discusses the effect of safety rules that exceed government requirements. The issue came up in a Staten Island ferry case where a “federal judge hearing the case held that the existence of these rules could actually be a factor in its liability (NYT).” Several commenters point out that this is not uncommon. Other commenters disagreed with Overlawyered’s analysis of the holding.
The death of Ralph de Toledano last month prompted Overlawyered to recall Ralph Nader’s case against de Toledano in 1975. That suit arose from De Toledano’s suggestion that Nader had “falsified and distorted” evidence about the Corvair automobile. I did not know anything about this case and have put it on my list of things to research later.
Antitrust Review weighs in on Vertical Minimum Price Restraints that are before the Supreme Court in the Leegin case. He discusses some of the different economic opinions of whether VMPR should be governed by a per se rule or the rule of reason.
Several blogs discuss the lawsuit filed by Public Citizen and an upstate New York personal injury law firm for a preliminary injunction against New York’s new ethics rules. The New York Personal Injury Attorney blog opines that “the issue is not simply ads in poor taste, but rather, any attention getting technique” and concludes that it “seems that New York’s judiciary wants to prohibit ads that are in bad taste, but has well exceeded such a goal. And while that may be a laudable objective to many, actually defining it is another matter. The new rules simply seem to be another version of the vague, ‘I know it when I see it.’” You can get a copy of the briefs through Nicole Black’s blog, Sui Generis. Nicole has several helpful posts on this issue. And there is even more discussion at LawBizBlog.
And then there are the really fun posts on my favorite research, writing and grammar issues.
Lisa Solomon of Legal Research and Writing Pro (where I also post blawg entries) writes about a frree Legal Research and writing resource from Thomson West. Who knew anything was free? According to Lisa, who also operates the Billable Hour, Thomson West offers free newsletters that give helpful research tips.
Guy Kawaski posts this week include George Orwell’s 1946 essay,: “Politics and the English Language.” Even if you have read it before, read it again. Guy got some interesting comments too, including some disagreement and criticism from one reader who considered quoting the essay as “lazy.” I disagree and am glad that Guy took the time to share the essay.
Even though I am a litigator, I have always enjoyed Ken Adams’ blog about contract drafting. One of his entries this week rethinks the use of the terms “material” and “material adverse change” in contracts. Those terms are included in many contracts, but, as Ken points out, they are both vague and ambiguous. He also offers alternative language and ideas for clearer contract drafting. Some clients apparently think that writing contracts and briefs should be done by associates rather than higher paid attorneys. Ken addresses that issue:
I understand the point: no company wants to pay a steep hourly rate for the dubious privilege of having a partner scissor-and-paste together a contract.
On the other hand, one could conclude from the quotation that drafting contracts is a rudimentary undertaking that can safely be left to associates. That brings to mind a scary vision of largely clueless associates hacking at forms of questionable quality and relevance.
The solution isn’t to have partners more involved. Instead, associates should be less involved: drafting should be commoditized.
My favorite posts are those about grammar, punctuation, and word usage.
In case you think that grammar and punctuation are not legal issues, think again. John McIntyre at the Baltimore Sun reports that the Arkansas legislature is considering legislation to declare that the possessive form of Arkansas is Arkansas’s. This follows 1881 legislation that formalized the spelling and punctuation of the state name, “making the final ‘s’ silent.” Coleen Barger at the Legal Writing Prof Blog has written a letter to the legislator who proposed the bill, giving more support for the possessive form.
Jargon is related to grammar and Roy Jacobsen gives a link to The Ridiculous Business Jargon Dictionary. What kind of jargon is ridiculous? What about “herding cats,” “at this juncture” (instead of “now” ) and “interface” (instead of “talk” ). Lawyers could fill a couple of those dictionaries.
Pam Nelson at the News Observer has a quiz on word choice. I surprised myself and got them all right.
Not really grammar, but Wayne Scheiss gives us some random words that he dislikes.
Ray Ward, as usual, has interesting writing tips. He discusses the difference between “forego” and “forgo” and whether you should start a sentence with a conjunction. He says that he “occasionally” comes across an adult who still thinks it’s improper to start a sentence with a conjunction. I am probably one of those adults, but I am being converted, especially since Ray is using the King James Version of the Bible to convince me. By the way, Ray Ward is giving up milk in his coffee for Lent. Ray, I started drinking coffee black (and no sugar) several years ago because there was only a split second of time when the coffee was perfect and some waiter would spoil it by choosing that time to freshen the cup. The problem with drinking black coffee is that it takes a long time to cool. Most people at the table have finished their coffee before mine is cool enough to drink. Good luck.
Wordsmith has a word that I would love to use in a conversation with some opposing counsel: misology (mi-SOL-uh-jee) noun — Hatred of logic or reason.
Mark Liberman and Languagehat are discussing the most annoying phrases in the English language and the core issue of why we even care. Do we complain about grammar to show that we know the rules and are therefore somehow superior? And how important are those rules? Language Hat posits: “If anything, the list of rules and infractions that began growing in the 18th century has worked to stifle creativity, and the best writers have always been willing to break the rules.” Interesting points.
The Writing Coach provides some good tips for going beyond the first draft. When you edit that draft, take the opportunity to reshape and focus, trim flab, nail the theme and hide the seams.
Lynn Gaertner-Johnston recommends Visual Thesaurus to find just the right word. Visual Thesaurus “is an interactive dictionary and thesaurus with an innovative display that encourages exploration and Learning . You’ll understand language in an exciting new way.” Give it a try.
You know I love Grammar Girl and this week she podcasted on two good subjects: (1) “although” versus “while,” and (2) semincolons, my favorite punctuation mark.
And maybe the most important posts this week are on Above the Law. Don’t miss your chance to vote on Librarian Hotties male and female.
References and Further Reading
About the Author/s and Reviewer/s