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Ethics in 2004 Wendy Leibowitz Well, I agree with both of you that the longer, more subjective version is more informative, but I wonder if the same amplification would be offered if the judges were not Democrats bucking Bush, but conservatives. In other words, would the NY Times extend itself to explain the actions of the Fourth Circuit judges, considered among the most conservative in the country? "The Republican-appointed judges [neatly merging the more moderate judges appointed by Nixon, Reagan and Bush Sr. with those appointed by W. Bush] voted to uphold the president's policy, even though in the past they have struck down some of his administration's positions." My wild guess is that neither the NY Times nor the Washington Post would do so. So if they want to give a informed, subjective background to the judges' ruling, beyond which president appointed him or her--and there are differences among the presidents--that's great. But I hope it's done for Republican/conservative judges as well. Otherwise it SEEMS as if the Times isn't just trying to inform readers, but trying to justify or bolster the ruling of a Democratic court (the very liberal Ninth Circuit). I saw something in the Washington Post on an ethical issue that I wanted to flag. It deals with a line of research about excessive punitive damages that challenges the competencies of juries to set these damage awards. Exxon, reeling from its 1994 record-setting punitive damage verdict of $5.3 billion from the Exxon Valdez oil tanker spill--cited several of the articles in its appellate briefs, and the Ninth Circuit judges in turn cited the articles in their ruling reducing the award to $4 billion. What was not disclosed is that Exxon funded the research. Exxon claims that the research is good social science. And of course, criticism of excessive jury awards is not new. This is the legal version of what the medical journals went through, when scientists published articles recommending certain drugs, without disclosing that the drug companies funded their research. The Exxon-funded professors insisted that they had retained intellectual control, although they acknowledged that company officials had commented on drafts, charted progress and coordinated meetings. All the papers acknowledge Exxon funding. Here are a few grafs, with names that are quite well-known. A link to the full article is below the excerpt. "I want to be very clear here," said John Payne, a business school professor at Duke University. "We were the ones who decided what the design would be, what the questions would be, how it would be written up for the journals." He and others pointed out that some of the published work had fallen short of Exxon's hopes. For example, he said, the company would probably have liked to demonstrate bias against out-of-town defendants, but the data did not support that. Cass Sunstein at first refused to join the project when a group of Exxon officials visited the University of Chicago, where he is a law professor. But he changed his mind after a fellow researcher, Daniel Kahneman, a Princeton psychology professor who went on to win a Nobel Prize in economics in 2002, persuaded him that they could remain independent. Still, Sunstein refused to accept money other than travel expenses. "I felt it was very important just for me personally to feel that the research was not affected by money, even though Exxon imposed no restrictions or strings direct or indirect," he said. The others refused to say how much they had earned. "That is personal," said David Schkade, a business professor at the University of Texas at Austin. "I don't keep tabs on that," said Kip Viscusi, a Harvard law professor, suggesting that some of the criticism stemmed from professional jealousy. "We can say we had complete freedom, and nobody believes us." His work also used funding from Harvard Olin Center for Law, Economics and Business." --end excerpt-- (The article is not on the Post's site, since it's from the L.A. Times service; you can read it at http://www.thesunlink.com/redesign/2003-12-04/nationworld/338016.shtml May 2004 be a year of high ethics, higher standards, and of course, prolific blogging for us all! 3:52 PM | | link to this post | what's new in Law Reporting | go to JURIST
Judges Partisan Affiliations Stephen Wermiel Thanks to Garrett for the holiday wishes and the same to all of you. I think I differ from Wendy on the Post version of the D.C. Circuit ruling versus the Times version. By simply saying which Presidents appointed the members of the panel, I think the newspaper misleads readers. It seems to me the clear implication is that these are 3 Democratic appointees and that is all you need to know about why they are blocking the Bush Administration's rule change. It is as if law has no substance and doesn't matter, all that matters is that these are 3 Democrats and that explains entirely why they blocked a Republican President. While the information is conveyed in a truthful and accurate manner, the purpose of the information, I think, creates an erroneous impression. The Times version of the story seems to me to try to put this information in some context, that the fact that they are all Democratic appointees does not necessarily tell you how or why these judges voted because they have on other occasions upheld actions of the Bush Administration. The fact that this may be a somewhat subjective observation does not bother me; it is the reporter bringing some expertise to bear on the story, actually telling us something about this Court and these judges. That has to be a good thing, the kind of information we wish beat reporters would give us regularly. An added note: i say all this as one who engaged in this practice of simply saying which President appointed the judges for more than a decade at the Wall Street Journal. But I have become a convert, believing that stamding alone, this information may convey a misleading implication. 2:22 PM | | link to this post | what's new in Law Reporting | go to JURIST more useful vs. more objective coverage? Wendy Leibowitz Well, I'll rise to Garrett's bait. The more objective (and traditional) way of reporting judges' political affiliations is to simply state which president appointed them. "Clinton-appointee Joe Judge" apparently signals enough to most readers about that judge. It's short, it's clear, it's factual. It's also unfair shorthand--Clinton, Nixon and other presidents appointed many moderate judges (in part to get their nominations through Congress without a fuss). While being shorthand, it's also accurate and an objective way to hint at political leanings without coming out and saying "liberal" or "conservative" and getting into labeling issues. But the NY Times version was more informative. It tells you that Democratic presidents appointed the judges, but also states that the judges have voted with the administration at times. BUT isn't that a subjective judgment? Who knows on what cases the judges voted to uphold a Bush administration position? On similar cases to this, or on environmental issues or traffic controls or tax issues? It seems to me, reading VERY carefully between the lines, that the Times is trying to say, "Yes, they were appointed by liberal presidents, but they're really independent thinkers." Not every newspaper has the room for such caveats, nor is it always appropriate. I appreciate it, but, well, I like the rulings, these judges, and the coverage of the NY Times. I wonder how the NY Post or the NY Sun reported the decisions...Happy Merry Everything--Hi, Garrett's Mom!--and thanks for helping me exercise my braincells on the day after Christmas when nothin' is happening here in DC. Yawn--that's Peace on Earth for you. God Bless Us, Everyone, Republicans, Democrats, Libertarians and People Who Pretend to Be Objective When Really, It's Impossible to do More Than Just Try to be Balanced. 10:56 AM | | link to this post | what's new in Law Reporting | go to JURIST
Judges' partisan affiliations Garrett Epps To return to an earlier thread, here is an interesting contrast in the method of indicating the supposedly partisan affiliations of federal judges. In his story on the decision staying the Administration's new, relaxed air pollution control rule for power-plant refits, Christopher Lee of the WASHINGTON POST concludes thus: "The three judges on the panel were Harry T. Edwards, nominated by President Jimmy Carter (D), and Judith W. Rogers and David S. Tatel, both nominated by President Bill Clinton (D)." Here, by contrast, is how Katharine Q. Seelye and Jennifer Lee of THE NEW YORK TIMES report the same information: "The members of the three-judge panel were Harry T. Edwards, Judith W. Rogers and David S. Tatel. All were appointed by Democratic presidents but have voted many times to uphold other actions of the Bush administration." Which is more accurate and useful? Which serves the readers better? (Tendentious as my question may seem, I am truly prepared to hear arguments on both sides.) Happy holidays, btw, to all my fellow bloggers and to any readers who check regularly. (On that note, Hi, Mom). 6:05 PM | | link to this post | what's new in Law Reporting | go to JURIST
2004 Predictions and Developments Wendy Leibowitz One of my favorite legal technology columns to write was always the "Look Back" at the end of the year coupled with "What to Look For" next year. These columns were fun to write--you could call up your favorite people and tap their brains and then write about what you'd like to see next year. (One of my editors disdained these articles as "thumbsuckers" because they required little real reporting--sometimes you just summarized what smarter people had to say). But they're fun (and easy) to write and read. This year people seemed obsessed with the influence of blogs. They are certainly proliferating (as this JURIST blog illustrates) and, I hope, increasing in quality as well as quantity. But their influence will not be significant in my view, until and unless we can foster real, public, and regular interaction between courts, lawyers and clients. In the legal journalism sphere, I'd like to see much more reader input and "conversations" about issues and the way they're covered in the legal press. Then, after an issue has been hammered out, an advocacy group emerges from that blog (think of the committee meetings we can avoid!) to change policy and to educate the public about how and why the change is needed and what the impact will be on their lives. I think we're about three years away from that. Still, it could happen. In the meantime, I enjoyed Mark Glaser's Look Back at 2003 on the Online Journalism Review site, at: http://www.ojr.org/ojr/glaser/1071797940.php Here's an excerpt: "But 2003 offered up much more than just an unhealthy fascination with blogs. We also obsessed over the proliferation of people with camera phones breaking spot news stories; the rise of Google and Google News; the soap opera at (AOL) Time Warner; the continued inroads of paid content; RSS feeds; massive online coverage of the war in Iraq; viruses, worms and spam overwhelming newsrooms; the struggle for independent news in Zimbabwe, China, Iran and Iraq; and political rhetoric and election coverage. If I were to play Swami again for 2004, I'd say we will see an acceleration of many of these trends as online publications start to gain more solid financial footing.... With the U.S. presidential election front and center for so much of 2004, and the Olympics, expect the three-ring circus that is online media to get more raucous and rowdy -- but perhaps it will mature as well." ** Then Mark asked several gurus for their thoughts, and posted them--in an edited version, deleting one sentence from one submission. So the writer, Vin Crosbie of Digital Deliverance, quickly restored his full comment on his blog: http://www.digitaldeliverance.com/MT/archives/000326.html Not a significant omission, as even Crosbie acknowledges, but the interaction and the ability to correct a fellow blog immediately and publicly is significant. I think it portends more responsible journalism. I am grateful to the Poynter Institute (www.poynter.org) for so much, including the interchange above. I continue to be annoyed that I can't link from my home Macintosh (Blogger doesn't acknowlege Macs), and I hope that will change in 2004. I'm also fed up with pdf, (portable document format) which requires you to download a publication rather than skim it online to find out whether or not you want to read it, let alone download it, at all. But the legal world will stay wedded to pdf because we're STILL obsessed with page numbers and uniform citation to PAPER records, not online records, where paragraph citation would be more useful. This will not change, certainly not in 2004, but I hope it will eventually--say, within 10 years. Because of my difficulties with pdf at home, I'm unable to download the Nieman Foundation's reports on journalism, including excellent journalistic blogs, at http://www.nieman.harvard.edu/reports/contents.html. I will use the time I've saved by not downloading the reports to do my own writing. Take THAT, Nieman Foundation and Harvard! Of course, I say that in a joyous holiday spirit. 11:15 AM | | link to this post | what's new in Law Reporting | go to JURIST
is US press becoming more European? Wendy Leibowitz I appreciate Stephen's taking the initiative to try to correct a TV broadcast. The impact of television is so much greater than the printed word (as a print lover and writer, it pains me to admit this), and it's extremely difficult to change the tone and slant of television--they are so ratings-bound. Now that legal issues are covered by all media, including television, the tendency to sensationalize events is great, even outside of the war on terror. For example, reporters routinely say, "If convicted he could face life in prison." Well, technically that might be accurate--that's the maximum penalty. But a more nuanced report might note that people convicted of similar offenses received anywhere from 1 year to life. I thought that the opinions beginning to permeate US legal reporting made our press sound more European (in a bad sense, sorry). Newspapers there are regularly identified with political ideologies or political parties--the Telegraph is the Tory paper in Britain, the Guardian the Labor paper and so on. They try to diversify, but they don't seem to succeed. In France it's worse: every article is slanted to a particular political point of view. But at least they're open about their bias. The BBC issued a memo recently barring their reporters from referring to Saddam Hussein as a dictator (From Andrew Sullivan's blog, www.andrewsullivan.com): "BAGHDAD BROADCASTING CORPORATION: An internal BBC email tells its reporters not to refer to Saddam as a dictator. From the Daily Telegraph's London Spy column: "An email has been circulated telling us not to refer to Saddam as a dictator," I'm told. "Instead, we are supposed to describe him as the former leader of Iraq. Apparently, because his presidency was endorsed in a referendum, he was technically elected. Hence the word dictator is banned. It's all rather ridiculous." The Beeb insists that the email merely restates existing guidelines. "We wanted to remind journalists whose work is seen and heard internationally of the need to use neutral language," says a spokesman. "Just when you think they couldn't get any worse, the BBC goes and does something like this. Under these guidelines, would Hitler have ever been called a "dictator"? He was originally elected in a freer election than Saddam, after all." ** I think conservative opinion is seeping increasingly into American news media. Rather than this being a useful corrective to charges of liberal bias, it just makes the separation of fact and opinion more difficult. As to articles that discuss the sensational charges (later quietly reduced), the Associated Press did a good job today: "3 Counts Dropped Vs. Guantanamo Worker By THE ASSOCIATED PRESS Filed at 11:29 a.m. ET WASHINGTON (AP) -- The Air Force has dropped three counts in an espionage case against a Syrian-born airman who worked as a translator at the Guantanamo Bay, Cuba, prison camp for terrorism suspects. The lawyer for Senior Airman Ahmad I. al-Halabi, a supply clerk detailed to the prison, said Saturday that once those charges were removed, ``simply the gut of the case was gone.'' Dropped was the single count in the charge that accused al-Halabi of ``aiding the enemy,'' a capital offense." More at http://www.nytimes.com/aponline/national/AP-Guantanamo-Interpreter.html?pagewanted=print&position= ** Among the better stories I've seen in this vein was also from the Times. On Dec. 14, 2003, they published a long piece on "Captain Yee's ordeal." It's in the for-pay section now, but it describes how virtually all the charges, from espionage through adultery (an offense in the military) were dropped against this Muslim chaplain. The most painful charge, he said, was the adultery charge. 1:21 PM | | link to this post | what's new in Law Reporting | go to JURIST
Camp X-Ray trial Garrett Epps I am wondering whether any of you have seen a good article explaining or speculating exactly what is going on in the prosecution of the military personnel who have been involved in working with the prisoners at Camp X-Ray in Guantanamo. The reporting I have seen has been very fragmentary and matter-of-fact. Yet the more I read, the more curious I become about what is really going on. So far it seems to conform to the Ashcroft Justice Department practice of announcing sensational charges and then later quietly reducing them to much more ordinary infractions. The media seems incurious about this potentially sensational espionage case. 2:07 PM | | link to this post | what's new in Law Reporting | go to JURIST
Bush "Overruled" on 'Dirty Bomb' Suspect Stephen Wermiel I'm with you, Wendy. One of the local D.C. television stations was reporting, "In a setback for President Bush's war on terrorism. . ." I just sent them an e-mail suggesting that on the contrary, it was a victory for fighting the war on terrorism within the protections of the U.S. Constitution. I tried to point out to them that their presentation was not a non-judgmental, neutral lead in any sense of that concept. 8:29 AM | | link to this post | what's new in Law Reporting | go to JURIST
Law firm marketers Larry Bodine There's an article about law firm marketers on page 13 of the new (December 2003) issue of American Lawyer. They note that top talent is now getting $400,000. Money well spent, says I. Based on the grief that marketers have to put up with (and I've talked to a bunch lately), you couldn't pay them enough. the article notes that "the culture of partners-know-best has remained entrenched. Thus staff turnover and frustration have remained high.") According to AmLaw, here's who's looking for a chief marketer: Bingham McCutchen (what happened to Margaret Child, Chief Marketing & Business Development Officer?) Hughes Hubbard & Reed (I thought Joshua Peck just got hired this year as Chief Marketing Officer) Paul Weiss Simpson Thacher King & Spalding (I thought Adair Sisk was Director, Client Services?) Kilpatrick & Stockton (what happened to Susan Slifer, Marketing Director?) The article notes that there is law firms don't agree on what a marketing director's authority should be or whom the person should report to. Answering directly to the managing partner is the preferred approach. The magazine says there is a "hiring boomlet" underway, with marketers with substantial legal experience being highly sought after. Now that's good news. 9:29 PM | | link to this post | what's new in Law Reporting | go to JURIST Bush "Overruled" on 'Dirty Bomb' Suspect Wendy Leibowitz It's interesting that the most objective coverage of the Second Circuit's decison today regarding Jose Padilla is here on JURIST. I am delighted with the court's decision, but dismayed by the coverage. Most news outlets present the decision as a defeat for Bush, as if he'd lost an election. The Associated Press is typical: "Bush Overruled on 'Dirty Bomb' Suspect Court Rules Bush Does Not Have Power to Detain 'Dirty Bomb' Suspect Padilla As Enemy Combatant" Look at how loaded that headline is. Yes, the government's position lost--if you report the judicial opinion as a horse race, Bush lost and Padilla "won." Skipping over the characterization of the appellant as the "dirty bomb suspect" --sounds like a cross between a terrorst and Pig Pen--these are questions of judicial interpretation. Here's a quick summary: "In a 2-1 ruling, a three-judge panel of the 2nd U.S. Circuit Court of Appeals said Padilla's detention was not authorized by Congress and that Bush could not designate him as an enemy combatant without the authorization. The former Chicago gang member who converted to Islam was arrested in May 2002 Chicago's O'Hare airport as he returned from Pakistan. Within days, he was moved to a naval brig in Charleston, S.C. [snippet] If appropriate, Padilla can also be held as a material witness in connection with grand jury proceedings, the court said. "As this court sits only a short distance from where the World Trade Center stood, we are as keenly aware as anyone of the threat al-Qaida poses to our country and of the responsibilities the president and law enforcement officials bear for protecting the nation," the court said. "But presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress," it added. In a dissenting opinion, District Judge Richard C. Wesley said the president as commander in chief "has the inherent authority to thwart acts of belligerency at home or abroad that would do harm to United States citizens." more at http://abcnews.go.com/wire/US/ap20031218_1332.html It's possible that because of the press's perceived --and actual-- hostility towards Bush, the governments' attorneys would decline to comment. The press asks questions of the attorneys as if they were losers at a sports match. ("How does it feel to lose? Do you think the constitution won? Do you have any words for Padilla's mother?") I happen to share some of the antipathy towards Bush, and rejoice in the court's ruling, which I think is a vindication of the constitution. But the press has got to recover some mooring of neutrality, or end up with the credibility of Al-Jazeera. 5:00 PM | | link to this post | what's new in Law Reporting | go to JURIST Is there a legal newspaper of record? Wendy Leibowitz Is there a legal newspaper of record? I wonder, because as news breaks over certain legal issues, I'm turning less and less to legal-specific outlets, and more to mainstream newspapers, law blogs, and weeklies with good legal editors, such as The New Republic. The legal issue du jour seems to be: was the picture of Saddam in custody a violation of the Geneva Convention? Amnesty International thinks so. See CNN, here I confess that I'm turning more to mainstream rather than legal pubs because the mainstream publications are free online, and offer just as good analysis sometimes as legal-specific outlets. Frustratingly, much legal content from such great papers as The National Law Journal, Legal Times, or The Recorder, (where I either used to work or wanted to work) are making their content subscription-only (or registration required, and there can be trouble with registration). Furthermore, it can be difficult to find these papers in the real world, and I'm in the big, lawyer-saturated city of Washington, D.C.! But worse, they don't seem to offer unique analyses or perspectives. For good legal insights, The New Republic, www.tnr.com, is just as fine as any specifically legal publication. This is a shame. There must be something, besides length and footnotes, that distinguishes a publication for lawyers from, say, a deep legal article in the New York Times, the Wall Street Journal, or the Washington Post. The Wash. Post has had some scoops lately regarding the future of the prisoners in Guantanamo Bay. Last week, it reported that government officials had attempted to secure a plea agreement with the accused detainee Australian, David Hicks, before he met with his newly-appointed legal counsel. It takes real sources in government, not to mention people willing to violate legal ethics rules, to get a story like that. In court, offers of settlement, including plea agreements, are usually confidential. This is not the case in the press, which is not bound by rules of evidence--if you can corroborate the news of a plea bargain to the satisfaction of your editors, you can write about it. (Law profs and legal editors, feel free to contradict me). Hicks' lawyer, in a press conference, said he could not "discredit" the report, which in legalese means it's true. ("I cannot confirm or deny" means it's confirmed.) The Washington Post article states: There were clearly discussions between him and interrogators about his future," [defense lawyer Kenny] said, adding that Hicks did not seem to fully grasp his situation. Kenny said that if he cannot strike a deal with U.S. authorities, there is no guarantee that Hicks ever will appear before a military tribunal. He has asked that Hicks be tried in Australia, and has called on the United Nations to intervene. Hicks "could simply be held there without trial and without charge," Kenny said. "It appears that Saddam Hussein will be afforded a fairer trial than Hicks." The Washington Post article, free online and no registration required, is at: http://www.washingtonpost.com/wp-dyn/articles/A9675-2003Dec17.html?referrer=email The "newspaper of record," of course, usually refers to the NY Times. As a former appellate lawyer, NOTHING was as important as the record except my salary and my relationship with my office mate. It (the record on appeal, not my relationship with my office mate) was the only thing my client had to cling to for justice. The transcripts--the record on appeal--were frequently terrible, incoherent, and delivered months or years late. (I was at Legal Aid, where we could not pay for expedited transcripts). The poor quality of the trial transcripts is one reason why I'm eager to see tapes and/or video supplement the written record. And now, the Ol' Gray Lady, the NY Times, "The Newspaper of Record," is facing a plagiarism accusation. The correction, which ran Dec. 8, reads: "An article last Monday about the Los Angeles River recounted its history and described the reporter's trip downriver in a kayak. In research for the article, the reporter consulted a 1999 book by Blake Gumprecht, "The Los Angeles River: Its Life, Death, and Possible Rebirth." Several passages relating facts and lore about the river distilled passages from the book. Although the facts in those passages were confirmed independently-through other sources or the reporter's first hand observation-the article should have acknowledged the significant contribution of Mr. Gumprecht's research." Now, plagiarism is not a prosecutable offense. If a great deal is copied, then a copyright violation could be asserted, and good luck getting more than the cost of a cuppa coffee if you win. But plagiarism is still a violation of journalistic, and academic, ethics, and people can rightly question a newspaper's standards if a reporter plagiarizes and is not fired. Even if it's a puff piece about floating down the L.A. River. And especially if it ran on the front page. Sadly, the reporter, who is Native American and an apparent beneficiary of the NY Times' excellent minority recruitment program, is being compared to Jayson Blair. (I guess any minority reporter in trouble will now be compared with Jayson Blair). Let's get this straight: Jayson Blair made things up. He invented quotes, places, and "facts" of all kinds concerning an ongoing, national hunt for people who were driving around shooting civilians in cold blood. That's different from copying from a book for a story about the Los Angeles River. Copying is a wrong of a far lesser magnitude. They're both bad. But it's important to maintain and understand the magnitude of the difference. Anyway, the snidest members of the press--admittedly a large group--are now sniping at the Times, at minority recruitment programs, and, for all I know, at the Los Angeles River. I don't think the Times can credibly claim to be the newspaper of record anymore. Not only because of these scandals, but because there are so many other places to find coverage that is just as broad and just as thorough as the Times. I think we live in a world where there is no longer one newspaper of record, and that's a good thing. Take it from someone who had to struggle with one "record" from an underpaid court reporter--I would have been grateful for a few more accounts of what had happened in the court below: from jurors, spectators, the bailiff, or the courtroom artist. When you're dealing with witness credibility, for example, the more perspectives, the better. The opinion piece below is Michelle Malkin on the National Review Online. She calls the plagiarizing reporter at the NY Times a hotshot. Well, a lot of people who write for prestigious publications consider themselves hotshots. It's like calling a Harvard Law School student "arrogant." It's an adjective that could apply to many people in the class. Here's her take: "The hotshot LeDuff is now in hot water over his cribbing of anecdotes from someone else's book about kayaking down the Los Angeles River for his own Page One fluff story about — you guessed it! — kayaking down the Los Angeles River... Gumprecht, an assistant professor of geography at the University of New Hampshire and a former newspaper reporter, told Slate's Jack Shafer he was "fairly shocked" by the similarities between his book and the Times's story, and that LeDuff's borrowing went beyond accepted journalistic practices." Malkin's entire article is in the National Review Online, at http://nationalreview.com/comment/malkin200312171508.asp 3:37 PM | | link to this post | what's new in Law Reporting | go to JURIST Journalistic priorities Wendy Leibowitz Mark Steyn, writing on opinionjournal.com today, notes with concern that there are some people who don't seem to CARE about the procedures used to try Saddam Hussein: "There was a revealing moment on MSNBC the other night. Chris Matthews asked Dr. Dean whether Osama bin Laden should be tried in an American court or at The Hague. "I don't think it makes a lot of difference," said the governor airily. Mr. Matthews pressed once more. "It doesn't make a lot of difference to me," he said again. Some of us think what's left of Osama is already hard enough to scrape off the cave floor and put in a matchbox, never mind fly to the Netherlands. But, just for the sake of argument, his bloodiest crime was committed on American soil; American courts, unlike the international ones, would have the option of the death penalty. But Gov. Dean couldn't have been less interested. So how about Saddam? The Hague "suits me fine," he said, the very model of ennui. Saddam? Osama? Whatever, dude." [Note: Dean did not say, "Whatever, dude." Steyn wrote, "Whatever, dude" to characterize Dean's response.] Note that the journalists have set the priorities here: a good American must care about the procedures and legalities of the trial. I don't agree with this assumption at all. As long as the trial is fair and open to the public, and perceived to be fair and open, then there are any number of forums (OK, fora) where Saddam could be tried. I personally favor Iraqis sitting in judgment of their former leader. But many people, particularly in Europe, seem horrified by this idea. In a culture where "Law & Order" seems to run 24 hours a day, indifference to the courts might seem incomprehensible. It is, apparently, to Chris Matthews and Mark Steyn. But it's not. Howard Dean is a physician: From a doctor's point of view, treating the victims of Saddam might be much more important than whether Saddam, say, is entitled to a jury trial. Judging from the experience of the former Soviet Union, where an entire generation was traumatized by Stalin, focusing on the victims is more important to the future than focusing on the murderer. Victims are not usually the focus of the courts. They should be more of a focus of the journalists, I think. Mark Steyn's entire column, which I do not recommend, is http://www.opinionjournal.com/editorial/feature.html?id=110004441 I will try to link to it, but my hyperlink shows up as white on white, which is interesting in an abstract art kind of way, not to mention philosophy: If a link is invisible, does it matter if a tree falls in a forest? But not particularly useful. Here's the link: http://www.opinionjournal.com/editorial/feature.html?id=110004441 9:47 AM | | link to this post | what's new in Law Reporting | go to JURIST
Preventing Atrocities, and Reporting on Prevention Wendy Leibowitz On Monday I went to a seminar at the US Holocaust Memorial Museum, sponsored by the museum's Committee On Conscience, which is dedicated to preventing future atroticities. Interestingly, one of the moderators was my law school classmate, Jerry (Jay) Fowler, who handled a refugee case pro bono while at a huge DC firm, and now works full time at the Committee on Conscience at the Holocaust Museum. While the participants spoke off the record (and some comments were surprisingly frank--it's always the interesting stuff that you can't quote), I was struck by how new this struggle for prevention was. We--government agencies, the media, private relief agencies and the legal system-- are trained to respond to crises. Preventing them is a whole new kettle of fish, to use a tired old expression. How do you report on a crisis averted? Whom do you interview? The panelists searched for answers in the medical community, which is more accustomed to speaking and thinking in terms of prevention, but obviously there are vast differences. The former Yugoslavia, for example, was relatively prosperous and healthy before erupting into civil war and massacres of the sort Europe hadn't seen in a generation. Coming on the heels of much of the discussion surrounding Saddam Hussein's trial, I am floored at how much of this is new to the international community. The legal and mass media have converged on one topic--how do we try him, and who tries him?--but the discussion just illuminates what we don't know. The reporting (so far) is as thin and speculative as the discussion: interview a lot of experts, mention some possibilities and end with, "Only time will tell." (I'm not saying I could do any better than anyone out there reporting now). I wonder if you could write an article about dealing with a Saddam in a way that is intended to prevent future Saddams. Here are two questions from the discussion at the Committee on Conscience: (1) What are the most effective strategies for atrocities prevention (both in terms of early warning and early policy response), and what resources are required to implement these strategies? and (2) How can a wide spectrum of institutions, including U.S. government agencies, other governments, international organizations, NGOs, and private sector corporations, coordinate their policies so as to increase the effectiveness of interventions for atrocities prevention? Notice how the media is completely left out. I think the media do have a job to do, and when the proceedings start, we'll definitely be either a part of the problem, prolonging and exacerbating Saddam's reign, or part of the solution. I'll try to be optimistic, more from desperation and personality than from experience. 5:23 PM | | link to this post | what's new in Law Reporting | go to JURIST
Seeing Justice Done Wendy Leibowitz I think it's critical not only that justice be done, but that justice be SEEN to be done. It's important that Milosevic's trial, for example, as flawed as it is, be televised in the former Yugoslavia. (I wish it were HELD in the former Yugoslavia, but people have little confidence in the impartiality of those judicial institutions right now.) Still, as Professor D'Amato's fascinating column on JURIST today [read it here] illustrates, these celebrated international tribunals have their flaws and pro-prosecution biases, too! Fortunately the cameras are running in the courtroom to prevent star chamber justice. I wish they could cover some of Professor D'Amato's "trials" as a defense lawyer. Was the trial or plea bargain of his client televised? Could the defense request a video record of the procedings, or waive it? I'm very interested in this: it adds an important dimension to the historical record. All this is more than mere empty speculation, as Saddam Hussein's capture illustrates. I am sickened when I hear people say that the Iraqis can't handle an impartial trial. Is trial by the victors, as in Nuremburg, an impartial event? Is Milosevic's trial--two years and running---an example people wish to emulate? It strikes me how new all this is. There have been tyrants, wars, and atrocities for ages, yet very few trials, apparently--Milosevic is the first head of state to be in the dock since Nuremberg (and of course Hitler committed suicide; he was never tried). And now Saddam Hussein. There are real challenges, but the scary thing is: we seem to be making it up. The media is playing catch-up, as usual. My wonderful editor from the National Law Journal, Hal Davis, who has posted comments under some of the earlier posts, emphasized the need for reporters to be familiar with the court's procedures and players. YOU CAN"T DO THAT WITH INTERNATIONAL JUSTICE. Each court seems to be if not re-inventing the wheel, then revising the code of justice significantly. Here's a round-up of Arab press coverage of Saddam's coverage. Again, appearances matter so much in that part of the world that televising the trial (and all pre-trial proceedings) is critical. http://www.worldpress.org/Mideast/1724.cfm 3:17 PM | | link to this post | what's new in Law Reporting | go to JURIST Cameras in the Supreme Court Stephen Wermiel I am actually somewhat agnostic on this issue, but for the sake of argument I wonder if Garrett was asking the right question when he inquired whether television "improved" the OJ trial. Do cameras have to improve the process? Why? I understand many of the concerns about justices playing to the cameras (it is hard to imagine Scalia playing a more active role than he does now, Garrett), about the media taking out-of-context soundbites, about rhetorical or hypothetical questions being presented as if they reflected a Justice's views. But a couple of assorted thoughts. First, interestingly, I am not aware of any suggestion that tv or radio took snippets and used them out of context off the audio feeds of Bush v. Gore or McConnell v. FEC. I realize it is not the same as having television clips, but I think itis worth noting. Second, and I don't know the answer to this, isn't it possible that if the Court made a deal with C-SPAN for full unedited arguments to be aired, that the deal could include a stipulation that no clips be fed to other outlets? Third, one side benefit that might come from televising the arguments in this way is that if he thought the cameras might be on him, Justice Thomas might actually have to feign caring about what goes on in the courtroom. A final point. I am with Wendy on the failing of the transcripts. I think it is inexplicable and inexcusable that the transcripts do not identify the Justice asking the question. If there is some technological problem, let the Court invest in voice recognition software. 8:14 AM | | link to this post | what's new in Law Reporting | go to JURIST
Human Rights Watch speaks out against a show trial Wendy Leibowitz I understand Garrett's trepidation of the effect that cameras would have on the US Supreme Court. Yet many appellate and some trial courts televise proceedings every day--are they capable, but the Supremes incapable, of dealing with the publicity? And Scalia does not seem to be publicity-hungry--after all, he BARRED cameras when he received an award for, ironically, freedom of speech. I do NOT think the public's right to know the Court is served by these "speedy" transcripts (it can take months for the transcripts to arrive, and they do not reflect which justice is speaking--they just say, "THe Court.") Reporting on the proceedings is not enough for me--I don't want the filter! Larry, it's good to see you again on the blog! People are still filing cases, even if the cases don't go to trial...Below is one man who, I think, will go to trial. Here's Human Rights Watch on charges that might be filed against Saddam Hussein. Note that HRW doesn't say what SHOULD happen. Annoyingly, they just warn against a show trial. Not very helpful: Iraq: No Political Show Trial for Saddam Hussein International Expert Participation Key to Trial (New York, December 14, 2003) - The Iraqi Governing Council must not mount a political show trial of Saddam Hussein, Human Rights Watch warned today. The U.S. Fourth Infantry Division took Saddam Hussein into custody yesterday. U.S. forces have not announced what they plan to do with the former Iraqi leader, but have previously made clear their support for an Iraqi tribunal to carry out prosecutions for crimes of the past. Last week, the Iraqi Governing Council created a new tribunal to prosecute the crimes of Iraq's past. "Saddam Hussein's capture is a welcome development and it's important that the Iraqi people feel ownership of his trial," said Kenneth Roth, executive director of Human Rights Watch. "But it's equally important that the trial not be perceived as vengeful justice. For that reason, international jurists must be involved in the process." Human Rights Watch has compiled substantial dossiers on the crimes of the former Iraqi leader, and published numerous reports on human rights abuse under his rule, including genocide and crimes against humanity. On December 10, the Iraqi Governing Council issued a law establishing a tribunal to try genocide, war crimes, and crimes against humanity. The tribunal law includes provisions on the rights of the accused and applies definitions of international crimes that are largely consistent with international law. However, key provisions are lacking to ensure legitimate and credible trials. The tribunal law does not require that judges and prosecutors have experience working on complex criminal cases and cases involving serious human rights crimes. Nor does the law permit the appointment of non-Iraqi prosecutors or investigative judges with relevant expertise. "Iraq has no experience with trials lasting more than a few days," said Roth. "International expertise in prosecuting genocide, war crimes, and crimes against humanity cases must be utilized to ensure a fair and effective trial." Human Rights Watch said any court conducting the trial must be independent of political influence, and free of bias and partiality. The trial must give the benefit of every protection for the rights of the accused under international law. Saddam Hussein must be allowed to conduct a vigorous defense that includes the right to legal counsel at an early stage. The tribunal law does not prohibit the death penalty and does not ensure that guilt must be proven beyond a reasonable doubt. In addition, the law does not sufficiently address protection of witnesses and victims or security for the tribunal and its staff. "Any tribunal trying Saddam Hussein should apply international standards of justice," said Roth. "To do otherwise would blur the distinction between the Ba'ath Party period and the Iraq of the future." Human Rights Watch has recommended forming a Group of Experts including Iraqi and international specialists to suggest appropriate accountability mechanisms and facilitate collection and preservation of evidence. A mixed Group of Experts would allow Iraqi jurists to draw on international experience gained from trying serious past crimes committed in the former Yugoslavia, Rwanda, and Sierra Leone, Human Rights Watch said. "The Iraqi Governing Council should partner with the United Nations to create an accountability process that works," said Roth. "There won't be a second chance to do this right." Some of the crimes for which Saddam Hussein might be prosecuted include: - The genocidal Anfal campaign against the Iraqi Kurds, which resulted in the deaths of some 100,000 civilians and the destruction of more than 4,000 villages; - The use of chemical weapons against Iranian troops and Kurdish civilians; - The large-scale killings that followed the failed 1991 uprisings in the north and south of Iraq; - The destruction and repression of the Marsh Arabs; and - The forced expulsion of ethnic minorities in Northern Iraq during the "Arabization" campaign. For more information on justice and Iraq, please see http://staging.hrw.org/campaigns/iraq/#Justice To read the Human Rights Watch policy paper, "Ensuring Justice for Iraq: Evidence Preservation and Fair Trials," please see: http://www.hrw.org/press/2003/09/iraq091203.htm 5:32 PM | | link to this post | what's new in Law Reporting | go to JURIST I won't see you in court: only 1.8% of cases go to trial Larry Bodine Less than 2 percent of lawsuits result in trials, according to a remarkable story in the December 14, New York Times. Forty years ago, 11.5 percent of civil cases in federal court went to trial. Even though five times as many lawsuits are filed today, the number of cases that go to trial has dropped amazingly. Only 1.8 percent end in a trial. This means you are less likely to have "your day in court," in America, and instead have "your day on papers." The statistics cover the federal courts, but there's no reason to think it's any different in the state courts. I always knew that most civil suits settled, many on the courthouse steps, but nowadays essentially all cases settle. This has a number of meanings for law firms: * Your firm's litigation practice is really a case settlement practice. Cases are either settled, dropped or resolved in arbitration or mediation. Many litigators have little trial experience; they essentially have a motion practice. * We're moving to a "barrister" model, with lawyers who only try cases. One my clients, Novack and Macey in Chicago, does this. They've successfully built a practice of trying lawsuits, referred to them by big law firms. Novack and Macey has no transaction or other department; all they do is try cases. * Written decisions by judges are way up. Based only on papers submitted by the parties -- called non-trial adjudications -- written opinions have risen to 50 percent from 32 percent since 1970. * Most cases in court are filed by one corporation against another. The court system is not clogged with personal injury cases, as the urban legend would have you believe. It's mainly businesses suing each other. So, I guess I won't see you in court! 11:28 AM | | link to this post | what's new in Law Reporting | go to JURIST
Greenhouse effect Garrett Epps I want to combine two recent threads to focus on the issue of televising Supreme Court proceedings. I really DON'T think that Justices are somehow seduced from their "true" ideological calling by the praise of the media elite. That strikes me as the kind of explanation a rigid ideologue--which Judge Silberman assuredly is--comes up with to explain why people he or she respects have closed their eyes to what seems like self-evident truth. It can't be stronger arguments from the bad side, because a true believer by definition is convinced that there ARE no strong arguments for the other side. The only really dramatic example of a "transformation" on the bench that I know of is Harry Blackmun's shift from being Warren Berger's "Minnesota twin" to being an impassioned advocate for outsiders, minorities and the poor. And I don't think that happened because of The Media and its praise--in fact, quite the reverse. I think he was changed by the bitterness and anger directed at him (including a bullet shot through the window of his home, as I recall) from angry people claiming to speak for conservatism. And that was independent of how the press played ROE V. WADE. But as an observer of 21st Century American culture, I have to conclude that the temptations of television are of an entirely different order. There is something about the electronic eye that changes people (if you don't believe me, ask, say, Greta Van Susteren). People have a hard time dealing with the level of fame it brings and the strong reactions it engenders from ordinary people. I would prefer that the Justices NOT have to think that hundreds of millions of people are watching their faces and reacting when they ask a hypothetical question of a lawyer in front of the Court. (Did TV improve the OJ trial? The question answers itself.) I think the tempation to play to the camera would be too much for them. They are only human, after all. And can you imagine Justice Scalia if he thought the nation was watching? No one--neither Justice nor lawyer--would get a word in edgewise. As for the public's "right" to access, I think it is adequately served by prompt publication of transcripts and opinions. It's a balancing test, and I think the institutional interests of the Court and the justice system generally need to be balanced against this ill-defined "right." 7:47 PM | | link to this post | what's new in Law Reporting | go to JURIST The trial of Saddam Hussein Wendy Leibowitz This is a joyous day for those eager to see an end to fear and violence in Iraq: Saddam Hussein was captured by the Fourth Infantry and Special Forces, thanks to a tip from local sources. And the question arose almost immediately from legal and non-legal sources: How is this man going to be tried? The BBC addressed this question over a year ago, in Oct. 2002: http://news.bbc.co.uk/2/hi/middle_east/2375787.stm Putting Saddam on trial Saddam Hussein could face trial inside Iraq Paul Reynolds BBC News Online world affairs correspondent The US Government and Iraqi opposition groups are discussing whether Saddam Hussein and his top aides - known as the "dirty dozen" - should be put on trial for war crimes in Iraq itself if the regime is overthrown and they are captured. The debate is further evidence of the way in which American thinking is being projected forward to consideration of a post Saddam Hussein Iraq. There is a growing consensus that the best solution would be for Saddam Hussein to be tried in Iraq under Iraqi law. Charles Forest, Indict Officially, the US position, laid out in a State Department document in 1999, is that "The goal of the United States is to see Saddam Hussein indicted by an international tribunal." But until recently, the type of tribunal envisaged remained vague. Charles Forest, director of Indict - a London-based group (funded partly by the US State Department) which is gathering evidence for a war crimes trial - said: "There is a growing consensus that the best solution would be for Saddam Hussein to be tried in Iraq under Iraqi law." International judges He said there could be an international element, with foreign judges sitting alongside Iraqi judges in a special court. This would help avoid any impression that Iraqis who suffered under Saddam were taking revenge. And Iraqi law would have to be changed first. "At the moment, Saddam Hussein and the top leadership are immune under Iraqi law," he said. The charges would include the use of poison gas, the execution of prisoners of war, the campaign against the Kurds in the 1980s and against marsh Arabs and crimes committed during the invasion and occupation of Kuwait According to Mr Forest, an American lawyer who worked with the UN in Bosnia, there is a little chance that a special International Tribunal would be convened to try Saddam Hussein in, say, The Hague, where the former Yugoslav leader Slobodan Milosovic is now on trial. This is because the International Court has now been set up - and the UN might not want to undermine that, even though the ICC jurisdiction does not cover events before 1 July 2002. Indict Saddam Hussein Indict's Chair, the MP Ann Clwyd who also heads the UK All-Party Human Rights Group, doubts however if such a plan would work and she is calling for European governments, including the British, to bring in indictments against Saddam Hussein and other Iraqi leaders now. Ali Hasan al-Majid is a key Saddam ally and former 'governor' of Kuwait "We have built up cases against the top 10 in the Iraqi leadership", she said "We are waiting to hear from the UK Attorney-General whether Britain will indict Saddam Hussein and Tariq Aziz (the Iraqi deputy prime minister) for holding hostages after the invasion of Kuwait". Indict and the Iraq Foundation in the United States have gathered evidence from witnesses and documents which would provide the basis of any prosecution. One of the biggest collections of documents was captured by the Kurds during their uprising in northern Iraq in 1991. These papers have been deposited in the University of Colorado. Charles Forest of Indict says they provide clear evidence that Saddam Hussein and his aides, especially Saddam's cousin Ali Hasan a-Majid, ordered the deaths of entire families and villages. Ali Hasan is known as "Chemical Ali" to Iraqi exiles because of his alleged role in the chemical attack on Halabja, a Kurdish village. [end] ** I think the trial of Slobodan Milosevic is a great example of what NOT to do, both in terms of letting Milosevic basically campaign for office from the witness table, and in terms of poor legal reporting. I don't understand the procedures nor the substance of the court trying Milosevic; I don't know who chose the decision-makers; and when will it be over? (I'm not saying I could do a better job--it's just frustrating). I very much hope that justice is done, by Iraqis, in the case of Saddam Hussein. I also take hope from the call by some senators, notably John McCain, for those prisoners in Guantanamo Bay to be charged, classified as prisoners of war, or released. Otherwise Saddam will get more due process than those in Gitmo! 2:21 PM | | link to this post | what's new in Law Reporting | go to JURIST
Where to find the analysis and what's the purpose of this blog?? Wendy Leibowitz First, it's both a joy and a relief to "see" you gentlemen posting again. I thought I'd offended you in some way, probably by writing out the url instead of magically hyperlinking to it, the way we're SUPPOSED to on a blog. (I still can't figure out how to do it. Help, St. Bernard!) 1. As to the methods by which legal journalists analyze important, lengthy decisions on deadline: You bet they're flipping through the pages as in Bush v. Gore. It's just that the TV cameras aren't on them, in part because SCOTUS bans cameras, and in part because we're not waiting to find out who's going to be the next president, just how he's going to fund his campaign. I agree that one of the indelible scenes of the Election of 2000 was watching reporters flip through the Supreme Court opinion to try to figure out what the 5-4 decision was. Terrifying on so many levels. 2. I was thinking where I go for legal analysis of such a turgid opinion, and it's not one of the legal papers or even the NY Times. It's the blog from Goldstein & Howe: http://www.goldsteinhowe.com/blog/index.cfm. Here's their summary, in its entirety: Notes on BCRA -- Titles III, IV and V As noted below, these are not intended to comprise a comprehensive summary of the opinion -- that can be found elsewhere. They're merely a handful of reactions on discrete issues that might slip under the radar screen in light of the bigger story. 1. The Court summarily, and by an 8-1 vote, upheld the constitutionality of section 311, the so-called "stand by your ad" provision. Rehnquist op. at 9. Justice Thomas complains that section 311 is "a virtual carbon copy of the law at issue in McIntyre," the only difference ("irrelevant," in Justice Thomas's view) being that section 311 applies to television and radio, rather than to pamphlets. Thomas dissent at 16 n.10. The Court majority does not address the McIntyre argument. (The continued force and scope of the McIntyre precedent is certainly one of the greatest mysteries emerging from today's opinions.) 2. The Court by a 5-4 vote upholds even section 504, the broadcaster disclosure provision, which many observers thought would be invalidated as applied to at least one of its requirements, namely, that broadcasters keep records of requests (made by anyone) to broadcast "message[s] related to a national legislative issue of public importance." The Court upheld this requirement because it "seem[s] likely to help the FCC determine whether broadcasters are carrying out their 'obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance,' 47 CFR §73.1910 (2002), and whether broadcasters are too heavily favoring entertainment, and discriminating against broadcasts devoted to public affairs, see ibid.; 47 U. S. C §315(a); Red Lion, 395 U. S., at 380." Breyer op. at 10. The Chief Justice, joined by Justices Scalia and Kennedy, dissented, citing -- what else? -- McIntyre, Rehnquist dissent at 14; and Justice Thomas also dissented, see Thomas dissent at 16 n.10. The majority -- you guessed it -- does not mention, let alone distinguish, McIntyre, although it is manifest from the Court's opinion that the principal distinction is the pervasive content regulation that the Court has permitted for television and radio. 3. The Court does not decide the very difficult question whether the congressional intervenors -- Senators McCain, Feingold, Snowe and Jeffords and Reps. Shays and Meehan -- have article III standing to act as parties in the case, because the FEC had standing, and the intervenors' position was "identical to the FEC's." Rehnquist op. at 11. They also post links to several other analyses on the Web, including a interesting take on the ruling, "Soft Money Shuffle," on Slate, at http://slate.msn.com/id/2092371/ (see, if I knew how to link, I'd just hyperlink Slate and lead you directly to Bryan Montopoli). 3. Goldstein & Howe's commentary is really all I need. It's factual, informed, prompt and personal (they also post predictions on their site, which I enjoy immensely). It is different from most solid, dull commentary, but it's factual and engaging. And that's a major improvement over most legal writing, journalistic and non. And that's what blogs are for. Right, Professors? 6:30 PM | | link to this post | what's new in Law Reporting | go to JURIST
Campaign Finance Story Stephen Wermiel I have to say that overall I think the media did a nice job with the coverage of McConnell v. FEC, the 298-page Supreme Court decision. I didn't flip television channels in the moments after the decision was announced. But I think it is good that we seem to have avoided the Bush v. Gore spectacle of reporters flipping through the opinion live on national television trying to figure out what it said. As lengthy and complicated as the decision is -- even the syllabus is 19 pages long -- reporters had plenty of time to become familiar with the different parts of the statute. And although the result was split into three separate decisions, the Court did make it clear what action it was taking as to each part of the statute. 4:54 PM | | link to this post | what's new in Law Reporting | go to JURIST Pontificating/Covering the Circuits Stephen Wermiel Okay, I'll withdraw the use of pontificating as a pejorative. But my point was that we were giving a lot of advice (and much of it sounds pretty good) about training journalists who write about law when the trend seems to be entirely in the other direction. It is great to advocate more law-related training for journalists (I certainly agree), but if editors are trying to have reporters get by on less training about law rather than more our advice seems somewhat hollow, at best. 4:38 PM | | link to this post | what's new in Law Reporting | go to JURIST Greenhouse Effect, Campaign Finance, Blogs Carl Kaplan Wendy, you've been paddling alone since Dec. 8. Way to go. On the so-called Greenhouse Effect, I'm dubious. The justices have life tenure, the highest legal status, first-class minds and acolytes. Their lives, I would think, are pretty insulated. Why would they care what a reporter thinks, or an editorial writer?. The whole thing is set up so they don't have to care. Why the nation's most pressing social issues should be decided by Justice O'Connor in 5/4 votes is the better question. The Economist asks this question all the time, see its coverage of affirmative action and abortion. I haven't read this take in the US press. Re: the 298-page decision in McConnell v. FEC: what is a reporter to do on deadline? Do we have any practical advice? Re pontificating on the blog: If we express our views and circulate facts, then we're doing the job we were asked to do. If we pontificate, i.e., use pompous or dogmatic arguments, then the blog will/should die. But I don't think we've been pontificating. 4:32 PM | | link to this post | what's new in Law Reporting | go to JURIST
Reindeer Risk Management Wendy Leibowitz Here's something for lawyers to contemplate at this time of year: reindeer injuries. From the Guardian: STOCKHOLM, Sweden (AP) - Forget poor Rudolph. It's the guy who has to herd him who has it tough. Reindeer herders have the most dangerous line of work in Sweden, according to a new study that analyzed the causes of deaths among all jobs in the country of 9 million people. Among the herders, who are mostly indigenous Sami in the country's far north, there were 150 deaths on the job between 1961 and 2000, said Per Sjoelander, one of the authors of ``Fatal Accidents and Suicide Among Reindeer Herding Samis in Sweden.'' The number of deaths was more than more than twice that for farmers and more than three times the total for construction workers during the same period. I'll try to link to the entire article, but I'm just figuring this technology out--here's the link: http://www.guardian.co.uk/worldlatest/story/0,1280,-3490108,00.html 3:31 PM | | link to this post | what's new in Law Reporting | go to JURIST The Greenhouse Effect Wendy Leibowitz John Fund, a member of the Wall Street Journal's editorial board (currently on leave) wrote a hilarious column this morning trying to understand why Sandra Day O'Connor voted the way she did: to uphold the soft-money ban of McCain-Feingold. He does not analyze her speeches, her articles, or her views on campaign finance. (O'Connor is the only member of the Supreme Court to have held elective office--perhaps she knows, first hand, the corrupting influence of cash and respects Congress's right to try to regulate it). No, he believes that O'Connor is desperate for media approval and so voted with the "liberal" branch to get praise in the NY TImes! He calls this "the Greenhouse Effect"--the need to earn praise from the NY Times' reporter, Linda Greenhouse. Here's the gist: "Judge Laurence Silberman, recently retired from the U.S. Circuit Court of Appeals for the District of Columbia, made a landmark speech in 1992 that explained the kind of pressures that nudge someone like Justice O'Connor away from her conservative moorings. Judges, he noted, are often swayed by a desire for praise. Their judicial vanity is often flattered when reporters or professors at elite law schools write glowing descriptions of how they've "grown in office,"--that is, come to see a liberal point of view more favorably. Journalists "have a lot more impact than [they] think," he noted ruefully. He said the most prominent media practitioner of the effort to "put political heat" on judges to move them in a more activist direction was Linda Greenhouse, then and now the legal affairs reporter for the New York Times. Judge Silberman called this process of co-opting judges the "Greenhouse effect." Friends of Justice O'Connor in her home state of Arizona have noted that she has become increasingly removed from the conservatism she once espoused as a state legislator and judge. "She seems to have gone the way of Barry Goldwater, who in his later years became much more liberal than before," recalls one former member of the Legislature. "Barry moved from libertarian to liberal on a range of issues. I think Sandra may be playing to the galleries a bit as she prepares to step down from the court." Peer pressure is usually something we discuss in the context of kids and the social pressures they face. But adults, even those in high places, also face peer pressure and more often than they care to admit are willing to succumb to it." I nominate this for the most vapid excuse not to analyze a judicial opinion that I've read in a long time: the NY Times made me do it. The entire article is free on the Web at http://www.opinionjournal.com/diary/?id=110004410 Back in 1992, Judge Silberman did praise one justice who had proved impervious to such influences. "Clarence Thomas has, for some time, resolutely refused to read all but a couple of newspapers," Mr. Silberman declared. "There will be, I would bet my shirt, no journalistic hole bored in his ozone level." More than a decade later, Justice Thomas has indeed remained true to his principles. President Bush would be well to look for men and women of Justice Thomas's fortitude when it comes time for him to fill the next vacancy on the Supreme Court. 9:51 AM | | link to this post | what's new in Law Reporting | go to JURIST
The Campaign Finance Ruling Wendy Leibowitz Just to say that the reporters who were handed a 298-page opinion in McConnell vs. FEC, dealing with the constitutionality of the Bipartisan Campaign Reform Act of 2002, seem to have done a crack job. I do remember the National Law Journal's reporter reading the caption and saying that any confusion was the Court's fault, not the reporters. Here's what he was talking about: Stevens and O'Connor, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'Connor, Scalia, Kennedy, and Souter, JJ., joined, in which Stevens, Ginsburg, and Breyer, JJ., joined except with respect to BCRA s.305, and in which Thomas, J., joined with respect to BCRA ss.304, 305, 307, 316, 319, and 403(b). Breyer, J., delivered the opinion of the Court with respect to BCRA Title V, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. Thomas, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA ss.311 and 318, concurring in the result with respect to BCRA s.318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and s.311, in which opinion Scalia, J. joined as to Parts I, II-A, and II-B. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which Rehnquist, C. J., joined, in which Scalia, J., joined except to the extent the opinion upholds new FECA s.323(e) and BCRA s.202, and in which Thomas, J., joined with respect to BCRA s.213. Rehnquist, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which Scalia and Kennedy, JJ., joined. Stevens, J., filed an opinion dissenting with respect to BCRA s.305, in which Ginsburg and Breyer, JJ., joined. Is that clear now? 5:56 PM | | link to this post | what's new in Law Reporting | go to JURIST
the influence of the blogosphere Wendy Leibowitz The promise of blogs is that the pontification can have an effect. I think Andrew Sullivan's blog kept attention focused on Trent Lott's record and ultimately was a part of Lott's removal from his leadership post. The mainstream media had long since shrugged off Lott's racist comments. A judge actually corrected his own opinion when an error was pointed out in attorney Howard Bashman's blog, How Appealing, http://appellateblog.blogspot.com/ Over time, a blog can gain credibility. Usually in the law, you have to wait a long time before you accrue the credentials to become credible and cite-worthy. A brief filed in the California recall case cited Eugene Volokh's blog, http://volokh.com/ and I think one of the opinions cited it as well. It was the first time a blog has been cited in formal legal papers, I believe, but certainly not the last. (Eugene answered them on September 15, 2003: "Hope the judges don't figure out how little authority blogs ought to have.") I hope they don't either---it's time the legal world opened up a little. I must learn how to link to things without writing out the url, as on a Web site. While I study this, you can analyze the list of law blogs on Ernie the Attorney's site, at http://radio.weblogs.com/0104634/outlines/Law%20Blogs.html If Thomas Paine were alive, he'd distribute Common Sense on a law blog. 4:08 PM | | link to this post | what's new in Law Reporting | go to JURIST
The trend Garrett Epps Steve, I know as well as you that the trend in media management is away from in-depth coverage, beat reporting, etc. But I don't see why that should keep us from discussing it. The purpose of this blog, it seems to me, is to discuss and someday perhaps even influence the media by pointing out how it could be covering the law better. I suppose that's just "pontificating," but what else does a blogger do? 10:31 AM | | link to this post | what's new in Law Reporting | go to JURIST The NY Times' "Law" page/Incitement Conviction Wendy Leibowitz I remember when Friday was the day when the New York Times used to run its "law" page. It was superb. There would be a thorough account of a case you'd never heard of, including verdicts reduced on appeal, which are rarely covered. A column by David Margolick might discuss the lighter side of the law, or legal language developments. I don't know whether they killed the page because it sounded too silly to segregate legal news on one page on one day--there's an entire business section every day, after all--or whether it faded away as part of the inevitable changes in a daily paper. I miss the page. Yesterday, the Times had a discussion of a conviction in Rwanda, ("Court Convicts 3 in 1994 Genocide Across Rwanda") (http://www.nytimes.com/2003/12/04/international/africa/04RWAN.html). Three media executives were convicted of incitement to murder: "In a 29-page summary of the Arusha judgment, which was read aloud in court, the judges pointed out that they were addressing issues that had not come before an international court for many decades. 'The power of the media to create and destroy human values comes with great responsibility,' the summary said. 'Those who control the media are accountable for its consequences.' " Once, I would have decried such a verdict as chilling freedom of speech. But after seeing relentless anti-Jewish incitment in some Arab media outlets, I am cheered by the verdict. At some point, people directly responsible for virulent hate speech that encourages, excuses and even celebrates killing, violence and terrorism must be held accountable. But I still miss the Times' law page. And, though it's an excellent article, there's no discussion of the legal basis for the verdict, and I don't know how to get the text of the opinion. 10:14 AM | | link to this post | what's new in Law Reporting | go to JURIST
thanks for reality check Wendy Leibowitz Thanks for the reality check, Stephen. I do not know the trends. My perspective is that of a worker ant in the garden, so please forgive me if I don't have the bird's eye view. I think there is MORE and more prominent coverage of legal issues, such as copyright, in the popular media, than, say, 10 years ago. This also means that there is poor and inaccurate coverage, but also more people to catch the errors and try to educate the public. I don't think it matters whether or not a reporter or editor has a law degree. As I said, I thought my legal education exacerbated my problems as a reporter by enhancing my arrogance and prejudices. (I think law school did help me organize my writing, though. I can develop a 3-factor test for anything). After all, law school is case-obsessed, so most people (including many lawyers) assume that legal coverage equals coverage of cases. Actually, of course, most cases settle. Good law schools would teach negotiation skills. So one of the main problems that I see with legal reporting is that it is too court-obsessed. By contrast, I think there is a lot more AND BETTER financial reporting, as the general public catches and attacks the inaccuracies out there. (Especially after overblown analyst projections). 2:41 PM | | link to this post | what's new in Law Reporting | go to JURIST Covering the Circuits Stephen Wermiel Not to inject too much reality into this debate, I think you'll find that the Yale program has gotten smaller, editors are hiring fewer reporters with law degrees to cover law than a decade ago, there are fewer news organizations with Supreme Court reporters than a decade ago, etc. All the pontificating we are doing is fine, but the trend is entirely the other way, I believe. 1:50 PM | | link to this post | what's new in Law Reporting | go to JURIST |
