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What Is It With Juries? Jack Ayer I've actually been and gone on two separate trips since I made that crack about calling me when the Tyco jury came back. This last time I was on a farm Amish country -- four days without CNN--so I didn't know anything about the Lone Ranger Granny who gave the high sign to the defense. Says "mistrial" to me but lat that pass -- what I really wonder is: what's this thing about juries? Every hot case appears to generate jury news these days--or at least (aside from Tyco) Martha Stewart and Scott Peterson. Is it happenstance? Or are we paying more attention to juries than we used to? I pine for a simpler time when the jury's job was simply to declare that "we find the defendant incredibly guilty." 11:36 PM | | link to this post | what's new in Law Reporting | go to JURIST Did There Come a Time ... Jack Ayer Wendy makes me remember an old New Yorker cartoon where he says to she (or maybe it was vice versa) "Did there come a time when you thought you could love a lawyer?" I started law school at the age of 28, a night student, married and with a child (my second kid was born the night of my criminal law exam)--in a cohort of students who were demographically pretty much the same. We used to make jokes about how LS had changed our home life. "Let's have chicken for dinner tonight"--"No! I'll give you six reasons why we can't have chicken!" I also remember the 70s, when all our women students arrived at the age of 28, married and with children, but divorced by the time they got through--it was like standing at Picadilly Circus and saying"those two cars are going to crash," and they do. Still, one thing I have always wondered is in how many cases it is LS that saves a marriage--or at least defers the inevitable -- by preventing all that potential interaction time. 11:17 PM | | link to this post | what's new in Law Reporting | go to JURIST the social lives of lawyers Wendy Leibowitz We interrupt the musings on important issues of the day to link to a story in the Washington Post today on the lawyers' singles scene in Washington, entitled "Lawyers ISO Love." Law school does NOT develop one's social skills, but one's adversarial argumentative skills, so one leaves looking for an argument and then wonders why attractive, non-judgmental people have trouble sustaining a relationship or even a conversation with you. Law school and legal journalism are also generally obsessed with litigation, so the reporter can write with awe that there are some lawyers that aren't litigators: "Even those who don't meet Mr. or Ms. Right can come away from a FriendSwap party with a renewed appreciation for the myriad ways in which it's possible to be a lawyer. At Maxim, there are government lawyers and corporate lawyers, law clerks and lawyers-to-be. Fully 30 percent of FriendSwap is made up of lawyers. Of course, there are also politicians -- two FriendSwap singles have run for Congress -- as well as people who work in politics, some of whom happen to be lawyers. There are government wonks and nonprofit people. There are PR folks and journalists, a number of whom spend their professional lives talking to politicians or lawyers. Which is not to say that FriendSwap is homogeneous. After all, some of the singles here got their law degrees at Harvard, while others got them at the University of Virginia, and still others at George Washington University. Plus, there are four gay men. Three of them are lawyers. " It's a big world out there. Legal journalists cover such a tiny fraction of it. 12:51 PM | | link to this post | what's new in Law Reporting | go to JURIST
Kobe Again (If You Have to Read Just One) Jack Ayer Watching CNN tonight you could get the impression that almost as important as the Clarke testimony is the story of Kobe and the rape shield law. It's tempting to indulge in a little celebrity mockery here, but I will try to resist the urge. I've thought for a long time that the issues underlying rape-shield laws put the court (and the legislature) in one of the toughest balancing acts that litigation can present. Some of the most intelligent coverage I've seen has been in (surprisingly?) the Christian Science Monitor. Here's the latest entry. If you have to read just one story on the topic, this would be a good candidate, but here is an earlier entry that job equally well. 11:09 PM | | link to this post | what's new in Law Reporting | go to JURIST For Richard Stans Jack Ayer I don't know, maybe my general air of corruption and cynicism is traceable to the fact that I grew up in an age when you didn't have to say "under God" as part of the pledge of allegience. Or maybe it was enhanced by the air of xenophobic hoopla that surrounded the adoption of the "under God" clause back in the McCarthy era. Either way, I admit I have little or nothing to add to the commenetary about the case as its makes its way into the Supreme Court. I therefore direct attention to one of the more interesting new blogs to come to my attention lately--that would be "Mirror of Justice," billed as "a blog dedicated to the development of Catholic legal theory." MOJ's entry on The Pledge confesses: "I am afraid I have not yet been able to muster much interest." He (?) adds: "I'm not sure why," but then he goes on and suggests a reason. "I believe that the Court will almost certainly conclude (assuming that it reaches the merits of the Religion Clause question) that the Ninth Circuit got it 'wrong,' and that neither the Pledge itself, nor its recitation in public schools, violates the First Amendment's 'Establishment Clause.' At the same time, I suspect that the reasoning provided in support for this result will be hard to take seriously. 'This is ceremonial deism, not an "establishment of religion,"' the Court will probably say. 'Even with the words "under God," the Pledge is a patriotic, and not a religious affirmation. The term "under God" no longer has -- if it ever really did -- any religious content or meaning.'" This strikes me as right, and refreshing. I've always thought that the best argument for keeping religion out of public life is that religion is too important for public life--they'll only screw it up. Indeed, MOJ presses the point further: "What would it mean for us to take such a proclamation seriously, I wonder? As I expect my friend, Fr. Michael Baxter of Notre Dame, would say, it's not far from an aspirational statement, i.e., 'we aspire to be one Nation, under God,' with all the obligations and burdens such aspirations would entail, to an idolatrous one, i.e., 'we are God's Nation, and isn't God lucky to have us?'" 1:23 PM | | link to this post | what's new in Law Reporting | go to JURIST
China Needs More Lawyers Jack Ayer --or so we learn from The People's Daily, reporting on remarks from Zhang Fusen, minister of Justice (and thanks again to the ever-vigilant Howard Bashman). There are so many ways to go with this story, it's hard to know where to begin. --The good folks at People's Daily report that there are now 102,000 "certified lawyers" in a population of 1.3 billion, which pencils out to about one for every 12,745 people. I'm a little shaky on the relevant American data, but I remember working as an infant newspaper reporter in a County seat town in Ohio 45 years ago, population 12,000 (the whole County had about 24,000). We had about a dozen lawyers, mostly clustered in around the old neo-Warren G. Harding courthouse, and it didn't seem like all that many. --And speaking of the 50s, how many remember the great rage to "export American law" that sucked up so much wealth from the Ford Foundation the Fulbright Exchange program, and heaven knows what other sources of benefaction? We wrote constitutions, drafted codes, trained judges -- the late Myres McDougal sent out battalions of acolytes to form the infrastructure of the former colonies. These days, it makes me think of Mark Twain, talking about his uncle the missionary -- "He went to preach the good news to the savages -- and they et 'im." --But deeper: I remember Joseph Needham's great treatise, "Science and Civilization in China: it ran to many volumes, but a fair chunk of one volume was devoted to the question: why has China, with such a proud tradition and ancient civilization, in recent centuries fallen so far behind? Needham's answer: the absence of a tradition of lawfulness, as we might understand it in the west. --So we were selling, and they weren't buying--and now here they are, all knocking at our door. I speak from experience: I sat on the admissions committee for our "overseas LLM" program a couple of years back. We're a small program; we are (or were) new; we hadn't done a lot to advertise. But it was dazzling th see the quality of applicants we were getting eager. to make their connections in the US, and then go back home and change those one-in-12,745 odds. 11:43 PM | | link to this post | what's new in Law Reporting | go to JURIST How Is It That Jack Ayer South Carolinians cannot display a license plate that says "Choose Life," while those individualists in New Hampshire have to display one that says "Live Free or Die"? And in Ohio, "Most Boring State in the Union"? (All true. Except the part about Ohio) (and thanks again, Elizabeth). [Bankruptcy angle: my friend Rich was second chair on the bankruptcy of Public Service Company of New Hampshire. He says the real mottol is "Live For Free or Die".] 3:38 PM | | link to this post | what's new in Law Reporting | go to JURIST And Here I Thought it was Arkansas Jack Ayer One thing any lawyer will tell you about that defamation suit you want to bring -- all you do is call attention to the original offense. Somehow, this message never got through to the governor of West Virginia, who does not like the suggestion that his constituents are, well, inbred. This one will be all over the blogosphere before the owl hoots in the holler. Like here, and here. And here. And here. And ... oh, you get the idea. If you really want more, go to Feedster and search for Governor West Virginia. 2:18 PM | | link to this post | what's new in Law Reporting | go to JURIST Media Access to Trials Jack Ayer LA Times has a nice temperate piece on judges who take steps to try to limit media access to trials. It's fair and balanced, almost to the point of boring: makes the "freedom of information" case in a straightfoward manner without any air of media special pleading. Nice job, but not as jazzy as a triple beheading in a pizza parlor. 1:43 AM | | link to this post | what's new in Law Reporting | go to JURIST Kelley, The Sequel: No More Mr. Nice Guy Jack Ayer Pardon, that was done for literary effect only. If you believe John Gorenfeld at Salon, Jack Kelley was never a nice guy -- rather, says Gorenfeld, he "trafficked in particularly explosive stereotypes" -- and, more awkward, his readers believed them. 1:23 AM | | link to this post | what's new in Law Reporting | go to JURIST
Tell Us Your Name Jack Ayer We commented earlier on Dudley Hilbel, the guy who didn't want to give his name to police. Following argument in the Surpeme Court, Stephen Henderson of Knight Ridder has an excellent analysis here. OH, and here's Dahlia (also instructive). 8:03 PM | | link to this post | what's new in Law Reporting | go to JURIST Say Again? Jack Ayer Most interesting and instructive re Jack Kelley, Wendy (though I more and more inclined to wonder why his bosses were asleep at the switch). But did you notice that Editor and Publisher writes: "... a Pulitzer Prize, the most prestigious award in journalism." Uh, does E&P really need to tell its readers that? [fn. re asleep at the switch: back at E&P, John Hanchette has a few pointed words: "USA Today editors should not emerge unscathed in all this."] 4:21 PM | | link to this post | what's new in Law Reporting | go to JURIST catching the lies Wendy Leibowitz First, I want to thank Jack for keeping up this blog while I have been drowning in real estate news (face it, that's what a lot of people are talking about nowadays) and Middle Eastern horrors (that's what a lot of people are trying not to talk about nowadays, especially on the presidential campaign trail). But Jack Kelley's exposure as a serial fabricator and then Nixonian cover-up artist has shaken me back to this blog. When USA Today started, it was a weak joke (much as CNN was). But now it is a respected paper, which I read on the road, in large part because it's so readily available and in part because it's a good quick read. I think and hope that the paper will inaugurate a fact-checking department and ombundsman in the wake of this. Some reporters can also double as fact-checkers. It's doubtful people will sue USA Today because of this (if you make up sources, as Stephen Glass did at the New Republic, the invented people rarely complain, let alone file suit) but I assume that newspapers' lawyers somewhere are waking up to their responsibility as protectors of their clients' reputation. Here's Editor & Publisher's write up of the precise details that he fabricated. Excerpt: For one of his stories in 2000, the newspaper said, Kelley used a snapshot he took of a Cuban hotel worker to authenticate a tale he made up about a woman who died fleeing Cuba by boat. The woman in the photo never fled by boat, and a USA Today reporter located her alive this month, the newspaper said. Kelley, 43, quit the newspaper in January after admitting he conspired with a translator to mislead editors looking into the veracity of his reporting. Kelly said he'd never fabricated or plagiarized. "I feel like I'm being set up," he told editors at the newspaper on Thursday. [THIS IS SIMILAR TO WHAT DC MAYOR MARION BARRY SAID WHEN HE WAS CAUGHT WITH A CRACK PIPE--WENDY]. Kelley spent his entire 21-year career at USA Today and was five times nominated for a Pulitzer Prize, the most prestigious award in journalism. For one of the stories that helped make him a Pulitzer Prize finalist in 2001, Kelley wrote that he was an eyewitness to a suicide bombing. But the investigation showed that the man Kelley described could not have been the bomber, USA Today said. The newspaper also said "the evidence strongly contradicted" other published accounts by Kelley: that he spent the night with Egyptian terrorists in 1997; met a vigilante Jewish settler named Avi Shapiro in 2001; watched a Pakistani student unfold a picture of the Sears Tower and say, "This one is mine," in 2001; interviewed the daughter of an Iraqi general in 2003; or went on a high-speed hunt for Osama bin Laden in 2003. Hotel, phone or other records contradicted Kelley's explanations of how he reported stories from Egypt, Russia, Chechnya, Kosovo, Yugoslavia, Cuba and Pakistan, the newspaper said. [end excerpt] 2:56 PM | | link to this post | what's new in Law Reporting | go to JURIST I Won't Pretend Jack Ayer to have read every word of that new monster report on the state of journalism, or even very much of it, but I must say I enjoyed Paul Farhl's testy take-down in Sunday's Washington Post. "I'd be more inclined to believe sky-is-falling assessments," he says, "if those conducting these studies also took into consideration the tendency of the public to offer knee-jerk responses, and the public's lack of curiosity and its hypocrisy toward the media." It would be fun and easy to quote more, but go read it for yourself; as the Guide Michelin says, definitely worth a detour. 1:11 PM | | link to this post | what's new in Law Reporting | go to JURIST The Other Looting Trial (15 Minutes of Fame Dept.) Jack Ayer "The looting trial" would be the case against the Tyco execs, now in the hands of the jury; "the other looting trial" would be the case against the execs at Adelphia, still under way at another court nearby. The NYT has an amusing story this on how this "other looting trial" has given one reporter his 15 minutes of fame. That would be Donald Gilliland, manaaging editor of the Potter Leader-Enterprise, weekly newspaper at Coudersport, Pennsylvania. He's on temporary assignment to cover the Adelphia trial for his paper and others. Adelphia and the defendants "have been part of the [Coudersport] region's fabric for decades," the NYT explains. But the NYT did not provide a link to the weekly's own website. Among other items, you can find some curmudgeonly commentary from an old trial lawyer (I bet he wears a bow tie). 11:36 AM | | link to this post | what's new in Law Reporting | go to JURIST
Flunks the Laugh Test Jack Ayer I admitted in my first post here that I felt a bit ambivalent about the Scalia, Cheney and the ducks. But Scalia's latest self-defense doesn't pass the laugh test. He says, in sum, that his hobnobbing with Cheney isn't a problem because Cheney is being sued only in his official capacity. But if this were true, then all Scalia has to do to avoid conflict--ever--is simply to declare that he is acting in other than his official capacity. He reminds me of Pooh-Bah in the Mikado, the "lord high everything else ... first lord of the treasury, lord chief justice, commander-in chief, lord high admiral, master of the buckhounds, groom of the back stairs, archbishop of Titipu, and lord mayor, both acting and elect, all rolled into one.” In my capacity as a justice, of course I cannot talk or listen to you talk about the case. In my role as a private citizen, I say nail 'em to the wall. Speaking as a duck fancier, I suggest dried apricots and a dash of tawny port. Speaking as a duck, I say quack. Thanks to my colleague Diane Amman for flagging me to the Scalia text link. Update: Adam Liptak floods the zone here. 6:08 PM | | link to this post | what's new in Law Reporting | go to JURIST Don't Bore Them Jack Ayer Here's a good basic rule of press relations: don't bore the reporter. Manhattan District Attorney Marc Scholl seems to have run aground on that rule in his closing argument at the looting trial of two Tyco executives. USA Today (Reuters) called it "thorough and tedious," but noted that "some jurors dozed and most quit taking notes after the first several hours." In mitigation, the story adds that Scholl had to compete "with the noise of nedarby car alarms, sirens and horns." Alex Berenson at the New York Times offered a fullscale critique. He said that "Mr. Scholl's closing statement was often tedious, echoing the problem that proecutors have had for most of the long trial ... . In the six months of testimony, prosecutors have offered jurors a bewildering mountain of evidence and arguments that have rarely been presented in a straightforward way. In his last chance to make sense of the case for the jury, Mr. Scholl never clearly explained who was supposed to oversee the pay packages [of the defendants], how the pay packages were supposed to be computed or exactly how much money the government believed the men had stolen. Instead, in a statement that lasted almost six hours, Mr. Scholl jumped from topic to topic and charge to charge, often changing focus just when he seemed to have gained momentum on a subject. . . . Mr. Scholl, who appeared to be reading directly from his notes and rarely made eye contact with the jury was often difficult to understand." Be interesting to see how Berenson explains it if there is a conviction. 1:20 AM | | link to this post | what's new in Law Reporting | go to JURIST
I Admit It, I Was A Skeptic Jack Ayer When the Jack Kelley first broke. I mean, USA Today always looked to me a bit like a bureaucratic Gulag: in the post-Jayson age when every newspaper had to destroy the career of at least one poor sod in order to prove its purity, I figured that this was USA Today's turn and Kelly was the guy who got to carry the can. Silly me. Today's USA today seems to have the goods. I can't imagine how you piece together a rebuttal after all this (though in fairness, apparently Kelley is hanging tough: per the same USA Today story, he is denying everything and claims he's being set up). I have to acknowledge, I'm not sure I ever read a word of a Kelley story before the stuff hit the fan. Nothing personal: it's just that I'm one of the lucky ones who doesn't have to spend his life in hotel rooms (it happens that this morning I wasin a hotel room). I won't say I would have seen through this stuff from the start; I doubt very much that I would have. But I must say that with hindsight, several of these pieces look just too real to be real. I mean, assuming he did what he seems to have done, than he is culpable, no getting around it -- but isn't it likely that there are a lot of sheepish bystanders hanging around the copy desk who might have been more than a teensy bit suspicious, but who just couldn't bear to look too closely? [Update: see the commentators at Romenesko for more on this point. Kevin Drum, who gets slapped around a bit infra, provides a nice summary.] Footnote: the usually sapient Kevin Drum goes off the rails on this one, suggesting that the media are going lighter on Kelly than they did on Jayson Blair because Kelley is white. Oh, come off it. There are any number of reasons why one might go lighter on Kelley. Scandal fatigue, for one. And nobody ever expected very much from USA Today to begin with. But finally -- what if it's true that they went lighter on Kelley? Still, what Blair did was wrong, and he had it coming. But Kevin may have a better point when he asks about Karen Jurgensen, the USA Today editor. At the Times, Howell Raines fell on his sword (or, was pushed). If it was right for him, why isn't it right for her? Another footnote: can anyone remember any story that USA Today has ever covered with the depth and thoroughness it applied to this one? 7:58 PM | | link to this post | what's new in Law Reporting | go to JURIST
Going to Ground Jack Ayer I'm going to ground for a couple of days. If the Tyco jury comes back, somebody rattle my cage. 1:34 AM | | link to this post | what's new in Law Reporting | go to JURIST What Can The Law Do? Jack Ayer Back in the Pleistocene when I taught contracts, I used to work a case called Brackenbury v. Hodgkin. That's the one where mama writes to her daughter and son-in-law, saying: please come home and take care of me; you'll inherit the house. They do come home and undertake to care for her, but it doesn't work. In the end, mama deeds the property to her own son. He tries to kick out his sister and her husband. They sue. It's a suit for specific performance--i.e., to force the old lady to take them back. They win. If you are an ordinary law student, the first time you see the case, you work through some hocus pocus about offer and acceptance, unilateral contracts, blah blah. I guess it was several years before I figured out the real point. Apparently (I'm working from memory here) the younger couple did stay on. Family relations remained bad. I believe they fed her with a two-tined fork. As I recall, the son-in-law used to entertain her by reading portions of the main court's opinion. And the point is? The point is that there are some problems that simply are not amenable to conventional solution, at least not within the limited range of traditional law-doctrine. Offer and acceptance, specific performance: these are nothing in the face of a two-tined fork. I thought of Ms. Hodgkin this morning over my orange juice. It was the story about the 91-year-old woman "who lost both her arms in a pit bull attack..." Evidently the dog belonged to her great grandson. She "has shown remarkable resilience," the story said. The family is looking into buying her prosthetic arms. 12:01 AM | | link to this post | what's new in Law Reporting | go to JURIST
Thucydides, Call Your Office Jack Ayer In an earlier post, I said that the job of the journalist was to afflict the comfortable and comfort the afflicted. Mr. Chairman, I wish to revise and extend my remarks. We're planning a trip to Sicily for later in the spring, to tromp over some ancient ruins (we do that sort of thing). In anticipation, we've been rereading Thucydides' account of the disastrous Athenian invasion of Sicily, (in the translation of Thomas Hobbes) "the greatest action that happened in all [the Pelopennesian] war, or at all, that we have heard of among the Grecians." And more pointedly: "being to the victors most glorious and most calamitous to the vanquished." That's putting it mildly: Thouk's account of the Athenian collapse, and retreat and the soldiers' subsequent death (the lucky ones) or imprisonment in the salt mines of Syracusa, is one of the great literary set-pieces on the horrors and the pity of war. Along with sheer narrative power, Thouk has a couple of qualities that are relevant here. One, he is the first great empiricist: he tries as hard as he knows how to tell the exact truth: "But of the acts themselves done in the war, I thought not fit to write all that I heard from all authors, nor such as I myself did but think to be true, but only those whereat I was myself present, and those of which with all diligence I had made particular inquiry." Two, Thouk never insults your intelligence. In the famous "speeches," he is at pains to lay out both sides of the case in full, and with complete intellectual honesty, so you can make your own best judgment as to who did what and why. That's why we still read him after 2500 years: he has achieved his goal of being "rather for an EVERLASTING POSSESSION, than to be rehearsed for a prize." Thucydides, call your office. Journalism hath need of thee. I was wrong: it is not the job of the journalist just to afflict the comfortable or to comfort the afflicted. The job of the journalist is to get it right. [Afterthought: take a second look at the original quote, linked above. Finley Peter Dunne was, above all, a great satirist. Isn't that just a bit of a twinkle I catch in his eye?] 11:14 PM | | link to this post | what's new in Law Reporting | go to JURIST Dodgy Dossier Redux Jack Ayer I need to choose my words carefully here because I do not want to be misunderstood. For starters -- I'm one of those who has felt for a long time that our policy re Guantanamo detainees is wrong from the get-go -- that's the official announced policy, which doesn't begin to do what it should do for fundamental principles of due process. It's against this background that I sat down to wade through wall-to-wall coverage in the Observer of the British detainees, particularly the "Tipton Three" who have lately been sent home, where they are now free to tell their story. Which they do with a vengeance in this account -- through the pen of the tireless David Rose. Now I know, the first job of the journalist is to afflict the comfortable and to comfort the afflicted -- but this stuff is just crap. What we've got here is the raw, unevaluated, uncontexted effusions of three guys who have every reason to be ticked off, as presented by a reporter by a reporter who seems to be loving every minute of it. Heavens to Betsy, hasn't this guy ever heard the phrase "Dodgy Dossier?" If Dana Preist had written this kind of stuff about Douglas Feith, Brad de Long would have a heart attack (no, wait; I think he did). These guys have been howling for a year about the shamefulness of hyping the data; must we infer that the rules simply don't apply to them? Recall that I'm not starting as a defender of the policy. Nor am I insisting that there has been no torture at Guantanamo. My point is that we probably don't no nearly enough on the point -- and we certainly don't know much more than we did on Saturday night. Okay, let these guys tell their story--but put it in some kind of context. What, for example, do we know about the role of the International Red Cross in auditing prisoner treatment? How do the Tipton stories match with accounts like this one (from the Observer's sister paper, be it noted) of the Russian mother who said "In Guantanamo they treat him humanely and the conditions are fine"? My ever-wise wife adds: I suspect we are probably not using electrodes on testicles (but anything is possible--ed.), but what do we know about more subtle forms of pressure--mind-gaming, psychological tricks, drugs? A very good point, and I think it breaks down into two questions: one, what in fact are we doing; and two, under rules of international law or ordinary civility, what are we permitted to do? I don't know the answer to either. I'd be happy to see an informed discussion of both points, but I sure don't get it here. Colin Powell in a glass cage at The Hague on a charge of allowing the administration of St. John's Wort--the mind reels. It's hard to know exactly what motivates stuff like this; whether knee-jerk anti-Americanism, or pandering to the base, or merely an impulse to try to out-tab the tabs. No worrry on that last score; the tabs can always do this trash better themselves. Source: I got these links from Michael Froomkin, who adds: "outside independent review — ideally judicial review — is essential either to rebut these claims convincingly or to root out and punish those responsbile if the uglier charges are at all true." He's got that one right. You certainly won't get it from the Observer. Afterthought: on sober reflection, it seems to me that the most horrific part of the life of the Tipton Three occurred while they were in Afghanistan, as captives of the Northern Alliance. If this is true, maybe it is true that on the Observer's own account, their luckiest break was to get shipped to GTMO. 8:40 PM | | link to this post | what's new in Law Reporting | go to JURIST Re: Barnes Foundation Legal Fees Jack Ayer Wendy, as we say down at the bankruptcy court -- justice only gives up her secrets at great price. In the annals of testator narcissism, I think an even better story is the Isabella Stewart Gardner Museum--at least as I was taught in law school, her will mandated that there be no variation from the presentation she prescribed, and so paintings later exposed as forgeries continue(ed?) to hang along side masterpieces. As my friend Tony liked to say, there are some cases where the lawyers just deserve all the money. 7:28 PM | | link to this post | what's new in Law Reporting | go to JURIST online access to legal docs Wendy Leibowitz 2004 has thus far been an excellent year for those of us advocating increased access to public records, at least if you're not interested in what 's happening in Guantanamo Bay. According to the Reporters' Committee for a Free Press, New York court records to go online A newly announced policy will place New York among the leaders in electronic access to the courts. MISSISSIPPI (Feb. 24) New rules open all legislature conference committee meetings The Mississippi legislature granted public access to all state House and Senate conference committee meetings, including those for bills appropriating money. CALIFORNIA (March 4) High-profile criminal court documents to go online The California Judicial Council approved a rule Friday allowing documents from high-profile criminal court cases to be published on the Internet. OHIO (Feb. 24) Women seek 1.7 million for public record destruction In a rare case over destruction of public records in Ohio, two women are seeking reinstatement of a $1.7 million jury award involving the City of Akron's destruction of employment records. WASHINGTON, D.C. (Feb. 26) Society lifts publishing moratorium on works from embargoed countries The American Chemical Society has ended its temporary hold on publishing research papers written by scientists in nations under U.S. trade embargoes, in defiance of a government ruling prohibiting the editing of such work. MISSISSIPPI (Feb. 27) City council meeting matter of public record The Mississippi Supreme Court ruled that a daily newspaper reporter had the right to attend a gathering of public officials, whose get-together was a meeting under state law, not a "social gathering" as they claimed. TENNESSEE (March 2) Speech restrictions eased in complaints against lawyers A confidentiality rule forbidding anyone from publicly disclosing complaints filed against lawyers was declared unconstitutional in Tennessee, giving the public the ability to know when a complaint has been filed. But then there's this: OHIO (March 4) Elections board bans media after ballot shown The Muskingum County Board of Elections in Ohio banned all members of the media from voting precincts following a complaint from a voter whose ballot was shown close up on television. ** I don't understand how showing a ballot identifies the voter in any way. (If it did, the ruling would be understandable but the voting procedures would need re-examination.) And the remedy--to ban all members of the media from voting precints?---seems far too extreme. Fasten your seatbelts for the elections of 2004! 5:06 PM | | link to this post | what's new in Law Reporting | go to JURIST the relationship between Webs, blogs and the printed page Wendy Leibowitz Just beaming back in from the Barnes Foundation in PHiladelphia (can't WAIT until that wonderful place moves to a more accessible location!) Incredibly, I can post something relevant to Jack's most recent post: The Online Journalism Review has an excellent article on how newspapers and other publications must change to respond to blogs and the widespread use of the INternet. "Longtime online news consultant Vin Crosbie says newspapers and their Web sites must change their approach to publishing news -- online and off -- if they want to successfully compete with the many Web sites and other new information sources vying for readers' attention and loyalty." It sounds trite, but there are real insights. Newspapers have long been poorly managed (Jayson Blair is only an extreme symptom of poor management) and of course those running legal publications generally come from two professions that are strangers to wise human and financial management: the law and journalism. So I think that ANY change, such as the Internet and daily blogging, has to force us to improve---to be better reporters, to get closer to our readers, to offer insights into the profession that only we can. Lawyers still prefer the printed medium---legal newspapers have a tremendous advantage in that respect. But the papers must become sharper and deliver the material their readers want. Not sure we're all up to the challenge, but the challenge is a good thing. And for those following the Barnes Foundation legal saga, so far the legal fees, according to the article linked to above, are as follows: According to Internal Revenue Service filings, from 1996 to 1998 the Barnes Foundation doled out $1,178,906 to the Philadelphia law firm of Blank Rome Comisky & McCauley LLP. In 1998, $1,173,658 went to the New York firm of Paul, Weiss, Rifkind, Wharton & Garrison. From 1992 to 1997, $1,013,714 went to Pittsburgh-based Buchanan Ingersoll. From 1992 to 1998, $2,054,591 was paid to Philadelphia-based Dilworth Paxon LLP. From 1996 to 1997, $388,618 went to the Philadelphia firm of Sugarman & Associates. Trial testimony last summer indicated that the foundation or its insurance company paid an additional $100,000 to the Sugarman firm, $80,000 to former State Sen. Hardy Williams, and at least $35,000 to other lawyers. That brings the minimum payout surrounding litigation to $5,952,487 for the period of 1992 to 1998. ** FREE THE BARNES FROM LEGAL FEES! MOVE THE FOUNDATION TO DC! 4:29 PM | | link to this post | what's new in Law Reporting | go to JURIST Sigh Jack Ayer The Wall Street Journal explains blogs: "Blogs are personal, diary-like Web pages that are usually devoted to a particular topic, and often have a decidedly sharp point of view." And explains: "... once derided as solipsistic exercises by self-important nobodies ..." [Thanks for the link, mom.] 1:16 PM | | link to this post | what's new in Law Reporting | go to JURIST
A Real Case of Snakebite Jack Ayer We've blogged on this before. Comes now US News and World Report with an exhaustive account of (as the headline says) "A Real Case of Snakebite: How a trophy terrorism prosecution morphed into a big mud fight." I wonder how many USN readers will have the patience to plod through five pages of what, in the end, sounds a bit like a bit episode of the Drew Carey show. But it's worth the trouble: a fascinating display of bureaucratic intrigue among people you might just hope would know better. 6:06 PM | | link to this post | what's new in Law Reporting | go to JURIST Knock, Knock Jack Ayer Here's a dated joke that doesn't recycle so well: "Knock, knock."--"Who's there?"--"OJ." --"OJ Who?" -"Okay, you can serve." Somehow, it isn't as funny about Laci Peterson. But it came to mind when I read this morning's Washington Post (AP) story about jury selection in the Terry Nichols trial. You remember? That would be the state (Oklahoma) trial of Nichols for his (alleged?) role in the Oklahoma City bombing (Nichols is already serving Federal time for killing Federal officers). Apparently jury screening went on for nine days, and I guess you have to have something to justify your expense account; in any event our reporter is impressed with how little so many of the prospects seem to know about the case. The interesting point, to the reporter and to me, is that jurors seem apologetic about it. "Not being interested may be un-Oklahoma," he quotes one as saying. "I'm sorry" (for a quick refresher, go here). Generalizing a bit, has anyone sat on a jury panel lately? They seem to call me often; I've never actually made it onto a jury, but I get to listen to a whole world of human hurt as the prospects tell about their own brushes with the law, and their own problems in coping with jury service -- one prospect, clearly an old mountain man, told the judge he couldn't afford to serve because he didn't have enough money for bus fare to court every day (the judge let him off). There's a bit of that flavor in the Nichols story. Recall that Nichols is the "other one," along with Timothy McVeigh, who was executed for the bombing. A defense lawyer asked a prospect: "do you believe that friends can mislead you, can hurt you?" "Oh yes," she replied. [fn.: in the Peterson case, they are using a 22-page questionnaire. There's a summary here.] 5:42 PM | | link to this post | what's new in Law Reporting | go to JURIST
Well, He Told Me I Could Post It ... Jack Ayer And anyway, he says it's a law-blog. You are... A 14th-century Englishmans View of the Sky!!!  You proceed in all directions, and represent the hope of a young Englishman in the dark ages. As he peers up above from his fiefdom, he thinks, "Dear Gods of the Heavens, shall ye cry today, or shall ye cast upon me the great light of the Lord?" You are rather capricious in what you share: At times you give rain when it is needed, at other times, you bring sleet or snow to ruin the most precious of crops. You have soft spots, called "Clouds," which show that despite your gruff exterior, you truly are a benevolent person. Perhaps, when these Dark Ages are over, you shall shine again to ol Britannia. Take the Personality Quiz, brought to you by Mr. Poon. 8:19 PM | | link to this post | what's new in Law Reporting | go to JURIST Remember Him? Jack Ayer He's got comments on Martha. He --that would be Foster Winans, the Wall Street Journal's insider trading bad-boy posterboy--also spoke out last year on Jayson. The Martha piece is perfunctory, but the Jayson piece has some interesting thoughts. Winans suggests that he, like Jayson Blair, felt himself an outsider at a great institution. "You’re afraid -- you feel you’re not entitled to be here. At the Journal, I always believed I was going to be fired anyway.” There's also an interesting note at the end, which says in full: "This story was modified after publication. An earlier version said that Winans felt during his Journal tenure that he was treated unfairly because of his homosexuality. The Journal reported this as fact in 1984; Winans informed us that he never felt that way." The piece also recalls that Winans' companion, David Carpenter -- the poor mug who got his name in the caption of -- the Supreme Court case -- died of AIDS. (Thanks again to Romenesko). 10:54 AM | | link to this post | what's new in Law Reporting | go to JURIST
Neighborliness Jack Ayer I get enough help from Howard Bashman that an ordinary neighborly spirit impels me to promote his campaign for a secondary market in Supreme Court bobblehead dolls. 11:05 PM | | link to this post | what's new in Law Reporting | go to JURIST Foreign Precedent Jack Ayer Thanks to my valued friend and colleague Elizabeth Joh for flagging this remarkable piece from MSNBC on the matter of U.S. Supreme Court justices citing foreign precedents. It's an issue that has been around for a while, but now come U. S.Reps. Tom Feeney of Florida and Bob Goodlatte of Virginia, with more than 50 co-sponsors, proposing a non-binding resolution to (quoting MSNBC) "express the sense of Congress that judicial decisions should not be based on foreign laws or court decisions." Here's Feeney's own press release on the subject. What's remarkable about the MSNBC piece is that it is, for daily journalism -- and audio, at that -- a fairly detailed and temperate account of the whole fandango. MSNBC remarks that the resolution is in tune with the views of justices "who hold that judges should look only to U.S. and British colonial precedents." That "colonial" is an interesting wrinkle. Sounds like no law student will ever again have to read Hadley v. Baxendale. 10:09 PM | | link to this post | what's new in Law Reporting | go to JURIST All News is Local Jack Ayer My doorstep edition of the San Francisco Chronicle has two double-truck headlines this morning: Madrid bombing gets two lines, four columns (out of six) across the middle of page one; State Supreme Court ordering a halt to gay marriage gets all six columns across the top (here's the online version). Death by drowning for 111 people in a ferry boat disaster off Madagascar gets three paragraphs on page two. You have to go to the jump on the gay marriage story to get the specifics on the State Supreme Court's ruling:' "The court ... said it would not rule on the city's argument that the California law defining marriage as a union between a man and a woman violates equal protection under the state and federal constitutions." "Instead, the justices said they would limit their review to the narrow issue raised by Attorney Generalo Bill Lockyer and opponents of same-sex marriage: whether [the mayor] and the city clerk are bound by a staqte-constitional provision requirng administrative agencies to follow a stte law until an appellate court rules the law unconstitutional." The piece follows up with some lucid commenatary from the ever-ready Gerald Uelman of Santa Clara: "I think the handwriting is on the wall, that the narrow issue they have identified is a loser for the city." I think I just heard my former colleague Vik Amar, now of Hastings, say pretty much the same thing just now on NPR. The court was at pains to speciy that it was ruling on the "administrative powers" issue only, not on the more specific issue of whether a "guys and dolls only" marriage law violates equal protection. The order also seemingly has no consequences for gay marriages already performed which remain, presumably, as valid (or invalid) as they were all along. The New York Times reports that the order "came as a shock to city officials and groups who support same-sex marriages," although it is not at all clear what the reporter could mean by that. If he meant merely that it "came as a disappointment," it's probably innocuous enough. But if he meant "came as a surprise," it is surely more problematic: I don't think it came as a surprise to friends and colleagues of mine who follow this more closely than I. Here's a link to some almost-local coverage, from the LA Times. 11:02 AM | | link to this post | what's new in Law Reporting | go to JURIST
Oh Gimme a Break Jack Ayer I'm a little surprised at how tolerant some of the blogerati are of the socializin g habits of our justices -- that would be Calpundit I'm thinking about, and my stalkee. Calpundit's version is more general and easier to engage. Here is Calpundit: "As it happens, I think we do ourselves a disservice by trying to pretend that Supreme Court justices are hermit automatons who have no interaction with the outside world. It's inevitable that they have lots of friends who have an interest in the kind of broad cases they decide, and it's also well known that they bring opinions of their own about social issues to the bench. Frankly, I'd rather know about it than pretend they don't exist." No, of course they don't need to be hermits (although it seems to work for Souter). But there is a lot of territory in the excluded middle. They can, for example, hang around with other judges. In fact they do: I well remember the round table in that restaurant on Western Avenue in LA, where the Cal Court of Appeals appeared to gather every day. They have plenty of "conferences," "retreats," "continuing education seminars," and god bless 'em; they need that kind of contact, and they might as well enjoy it. They can meet lawyers in this kind of semi-structured environment as well. I don't know of anybody much objecting to judges who go to Bar meetings, where they can see their old buddies and some of their non-buddies as well. Aside from that, they may indeed have to regulate their relationships with some of their oldest and dearest friends. But this needn't be a total exclusion; they can perfectly well keep up the relationships if they know how to temper and manage them (I know lawyers who just won't appear before judge X because judge X and the lawyer are old friends, and they don't want any misunderstanding). Moreover, they can simply cultivate some new friends among people who are not likely to have business before the court. I confess I am not the world's greatest Rehnquist fan, but I must say I remember the year he skipped the State of the Union message becuse it conflicted with his acrylics painting class -- now that, for once, is a display of real class, and a certain intellectual flexibility to boot. Dahlia's argument is a bit more pointed and, I must say, a bit more perverse: "[Scalia] suddenly appears biased because he likes to hang out with folk who feel the way he feels about things. That criticism is unfair, because it questions Scalia's neutrality based not on anything he's said about a pending case... but based on whom he speaks to. You don't need to be a legal scholar to understand that this kind of guilt by association usually reveals paranoid McCarthyism as opposed to factual guilt. It's not unusual for conservative justices to speak to Federalist societies or for liberal justices to give speeches to the American Constitution Society. Does anyone really believe that Scalia spends his time shooting hoops with ACLU interns? The fact that justices, and the rest of us, like to speak to, write for, and dine with people who agree with us ideologically may make us slightly gutless. But it doesn't make us biased." As I understand her, she says: of course everyone knows that Scalia is a partisan of reactionary causes -- deal with it. No, sorry, I am not ready to deal with it. I think Scalia's taste in particular makes it clear just how profoundly unfitted he is for high judicial office. Okay, so he has old friends in the Federalist Society -- you know what?So do I. But this is precisely the stage in his career where he needs to put a damper on those relationships and to try to rise to a new breadth of vision. No, I don't think he shoots hoops with the ACLU -- but he might give it a try, he might learn something. 11:06 PM | | link to this post | what's new in Law Reporting | go to JURIST
Why Can't You Lie to the Government? Jack Ayer I was cooling my heels in the coffee lounge the other day (wasting a lot of good websurf time) when one of my most beloved colleagues caught me flatfooted with a simple question. You need to know this guy: he is the one person on our faculty -- in my entire circle, really -- most likely to be mistaken for Elihu Root: an old-fashioned gentleman of a lawyer, the model of propriety in every way. I am not being snide or ironic here: I would leave this guy to count my bucket of rubies while I went on vacation and he wouldn't cheat me by so much as a pebble. But he is also, I suppose -- not a libertarian, exactly, too mannerly for that -- well, I suppose you would say the kind of guy that thinks that the government ought to mind its own beeswax. So perhaps I shoudn't have been surprised when he said: Is anyone here offended that Martha Stewart will go to jail just for lying to the government? She wasn't under oath. Isn't it your right to lie to the government? Okay, maybe he was just trying to provoke: he is, after all, a law professor. But as I say, he caught me flatfooted and I did what any good citizen does when confronted with a question he can't answer--I changed the subject. But I had to admit to myself that he was onto something here. And I had to concede, at least to myself: here is an issue that not much of anybody is paying attention to, not least, I suspet, because it is Martha, whom we all love to hate, who has worked so hard to win the Leona Helmsley lifetime achievement award. Anyway, I thought of my colleague, and Leona, and Martha, again this afternoon when I ran across this remarkable Slate item by someone who, in the mean sweepstakes, wouldn't even make the quarter finals. That would be the clear-headed and commonsensical Barbara Babcock; she's writing on Dudley Hilbel. You may remember ol' Dudley: he's the drunken cowboy who refused to reveal his identity to a Nevada cop. Now certaily, your mother will tell you that this is a very dumb move. But that's often the case with cutting-edge Constitutional conduct. Barbara says that Hilbel's case is a "watershed" -- one reads (but she did not say) "the end of Western Civilization as we know it." She makes her case with a brisk stroll through the case law and I must admit, as one who never teaches any constitional/criminal course, it is a long time since I gave any thought to Terry v. Ohio, the first great stop-and-frisk case, decided just weeks after I joined this honorable profession. And I confess I hadn't even noticed some of the later caselaw -- particularly U.S. v. Arvizu: those of you more alert to the erosion of our rights will remember that as the case which okayed a stop because the driver slowed downwhen he saw a cop -- and when, as Barbara says "the children waved suspiciously." All of which takes me back to Martha, and my good buddy, the double of Elihu Root. Somehow the idea of telling the government doesn't look so bad. And as to outright lying ... 7:58 PM | | link to this post | what's new in Law Reporting | go to JURIST Why They Behave That Way Jack Ayer Okay, I admit it, there is no direct law tie here, but I want to showcae a thoughtful piece by Juan Coles, the (Guru? No. Ayatollah? No, no. Okay, dean) of Middle East bloggers on why journalism is the way it is. Several points have obvious relevance to our line of work. E.g.-- --Journalists thrive on access. It is a hobbyhorse of mine, and I've probably said enough on the topic before. --Journalists are part of the establishment. I suspect this overlaps with the point on access. --Journalists are generalists. Indeed, and that is part of the fun. --No peer review. This is a fascinating paragraph, and deserves careful thought in its own right. --Finally Coles complains that the US press is largely "capitalist." As a card-carrying capitalist, I resist the charge. But I would recharacterize it as saying that the US press is largely "consumerist"--CNN, Fox, whoever, they do it that way because it sells. But I'm not sure where this takes you. Indeed, particularly what with the blogosphere, you really can get just about any kind of info/news you want. Example: you want good Iraq coverage, you read Juan Coles. But I suspect he doesn't have the audience of CNN. 2:15 PM | | link to this post | what's new in Law Reporting | go to JURIST Oh, Go Steal Some Cable Jack Ayer Josh Marshall had a wonderful piece last year (I can't seem to find it) where he explains why nobody blows the whistle on Larry King: we all know we may do something unforgiveable someday for which we will need to go on TV and beg, well, forgiveness. I remember this as I try to block my ears to the loathsome Jayson Blair as he pours forgiveness all over himself on Larry King tonight (so, why don't you turn it off? Can't find the zapper! So, throw a shoe at it. I'm barefoot!). But I have to admit that I enjoy the suggestion that he is Mrs. O'Leary's cow, Janet Jackson and Steve Bartman (remember him?) all rolled into one. And the idea that of his 15 minutes of fame, he has already used fourteen and a half (links from Romenesko). 12:39 AM | | link to this post | what's new in Law Reporting | go to JURIST Jurist Gets Results! Jack Ayer I'm pleased to report that the Justice Department is backing down-- for now-- on its effort to subpoena abortion rocords of Planned Parenthood Clinics -- surely dazzled by our keen analysis of the issue. But it took you a month, what's the big deal here? No, no, I jest: the NYT says the government acted after a judge in San Francisco ruled against the government and "encouraged" it to withdraw its subpoenas. Here is the judge's order. 12:10 AM | | link to this post | what's new in Law Reporting | go to JURIST Will They Give the Poor Man No Peace? Jack Ayer Who says we don't need Court TV? Where else would I have learned that DirectTV is suing OJ Simpson on an allegation of TV signal pirating? Let's see, DirectTV, OJ--isn't that a little like the Iran-Iraq war, where we kept rooting for both sides to lose? 12:02 AM | | link to this post | what's new in Law Reporting | go to JURIST
More on Memogate Jack Ayer Calpundit has the best summary I've seen of the Republican raid in the Democratic files at the Senate Judiciary Committee--along with what appears to be the unredacted version of the Sergeant-at-Arms' report (warning, big file). The verdict: the fact that the files were available seems more to do with administrator sloth than hacker malice. Still, if someone nicks my laptop because I was fool enough to leave my door open when I went to lunch, it's still theft. Josh Marshall showcases that we still don't know who at the Justice Department (if anyone) might have had a chance to see the files. [Update--more good stuff today. The comment thread is, well, what you would expect of a comment thread. But you'll want to skim it if you want to know who this guy Miranda is.] 11:35 PM | | link to this post | what's new in Law Reporting | go to JURIST Cute Bit of Satire Jack Ayer On NPR ATC this afternoon re that stuff about the Ducks. The fun part is the part on John Paul Stevens and what he does with an answering machine. But last I knew, Stevens was living most of the year in Florida so the odds are he is pretty good at long-distance communication. 8:05 PM | | link to this post | what's new in Law Reporting | go to JURIST Okay, So Which Is It? Jack Ayer Does Scalia just have a tin ear? Or is it everyone else's ear that he enjoys sticking it into? 5:52 PM | | link to this post | what's new in Law Reporting | go to JURIST Dershowitz' Theory Jack Ayer Never afraid to throw himself into the thick of the fray (nor to call attention to himself), Al |
