Blawg Review

It's not just a blog carnival; it's the law! ~ a fool in the forest

Blawg Review #29

The First Law Review
Blawg Review is hosting Carnival of the Capitalists #107 this week, along with this Blawg Review #29, a "business law" special to help celebrate CotC's second anniversary of business blogging.

Blawg Review is the blog carnival for everyone interested in law; a travelling post including links and commentary on the best recent law blog articles, hosted by a different blogger every week.

The word "blawg" was coined by appellate attorney and blawgmother Denise Howell of Bag & Baggage, who is, coincidentally, next week's host of Blawg Review. The name is a pun on Law Review periodicals published at law schools, such as the Harvard Law Review.

The anonymous editor of Blawg Review, who probably could have "made law review" but would have preferred being the "editor" of some law journal online had the Internet been invented, announced this project in a cheeky guest post on Evan Schaeffer's Legal Underground: "Oh yeah, it's over for Law Review." It's been uphill ever since.

From humble beginnings, Blawg Review reached the pinnacle of the legal journalism food-chain, and was gobbled up by affiliated with the blog network. Blawg Review continues as a collaboration of the worldwide community of lawyers, law students and law professors; an independent law blog project administered by an Editor in Chief with help from well-known Contributing Editors, including Kevin Heller, Evan Schaeffer and Michael Cernovich.

Unlike most other blog carnivals, which rely almost exclusively on submissions, Blawg Review looks at the best posts of many different law blogs collected from various sources each week. This is the only carnival I know that has Contributing Editors, each of whom submits at least 5 recommended posts every week, collectively sourcing at least 20 "peer-reviewed" posts for the Blawg Review host to consider.

The host of each Blawg Review decides if any or all of the recommended posts are suitable for inclusion, along with about 10 posts which the host is encouraged to source and select. The host's personal selections usually include several that reflect the character and subject interests of the host blawg, recognizing that the regular readership of that weblog should find some of the usual content, and new readers of the blog via Blawg Review ought to get some sense of the unique perspective and subject interests of the host.

To these recommendations and selections are added most of those posts submitted by law bloggers on their own behalf. It's the essence of a blog carnival that it provides a forum for bloggers to submit their own posts they think meet the standards and subject matter of that blog carnvial and the character and interests of the host, so we encourage Blawg Review hosts to err on the side of including most submissions, and to discuss any questionable submissions with the Editor. In the end, the host always has the final cut.

The unique role of the Contributing Editors is intended to ensure that excellent recommendations are drawn from a wide range of law blogs, and not just from a cadre of regular participants. At the same time, Blawg Review benefits from the widest possible participation and relies on submissions and recommendations from many different law bloggers, so submit early and often following our easy Submission Guidelines.

This week, your contributing editors and participating law bloggers turn their attention to the best blawg posts at the intersection of law and business.

Blawg Review #29 is organized for easy reading and clicking through. Each review has a link to the main page of the law blog, and another to the permalink of the article on the title as written by the author, along with a "money quote" pulled from the post to encourage you to check out the full article. Our theme this week is Dean Prosser's legal maxim:

Res ipsa loquitur, sed quid in infernos dicet?

Professor Gordon Smith gets into a vociferous discussion with Beldar and other commenters on the Conglomerate blog following this post:
The Supreme Court on Business Issues

Looking at what we are told about her practice history, my guess is that Harriet Miers is fluent in the language and customs of business people in the United States. Although her practice was not extraordinary, it was solid. On the other hand, she does not seem at all passionate about business law. When she is not engaged in billable work, she mostly pursues politics, not business. When she writes and teaches, her focus is on litigation and legal ethics, not business law.
Professor Bainbridge, who has registered his .com as a service mark, writes a lot about Harriet Miers these days. You might want to read more of his considered opinions after you check out these links we found especially interesting for this special "business law" issue:
Miers and Business Law

Miers and the Economics of Adjudication

Over at TCS, I've published a column entitled Where Might Harriet Miers Make Her Mark? No, the piece is not another anti-Miers screed; I'm saving those for the blog. I viewed this piece as a mini-scholarly project and, as with all my scholarship, I tried very hard to let the model go where it wanted, even if it ends up with predictions I find politically unpalatable.
Professor Larry Ribstein at Ideoblog is concerned about the wealth Harriet Miers hasn't accumulated:
Miers and business, again

...I’ve seen nothing to change my mind, but something to make me worry even more: Miers’ investing. As discussed here, she apparently hasn't yet recognized the wonders of the portfolio theory. This makes me wonder whether how much sophistication Miers will bring to judging complex business issues.
Matt Bodie at PrawfsBlawg wraps up this discussion about:
Harriet Miers and the "Good for Business" Question

To me, Harriet Miers doesn't look like a pro-business nominee; she looks like a big-law-firm nominee. There's a difference. Big law firms are likely to cater to big, institutional clients on a variety of matters. To generalize a bit, they bill by the hour, spend a lot of time and attention on matters, and prize their client relationships. They are influential in local and state bar associations. They may like business, but they like the practice of law as well. So in the areas that a wide range of businesses might most be looking for help -- tort reform, damage caps, harsher pleading requirements -- a big-firm nominee (with ABA leadership experience) might feel a twinge in restricting or limiting the role of lawyers in the process.
We can only assume Harriet Miers has strong opinions about this. Bruce MacEwen at Adam Smith, Esq., whose blog is an inquiry into the economics of law firms, polls his audience:
Yea or Nay on the Billable Hour

Will the billable hour ever lose its dominance?

One Man's Thoughts on the Billable Hour

...the demise of the billable hour, if it ever comes, will be primarily client-driven. I am less confident that the precise contours of the Post Billable Hour World will follow Jim's template, but it's both a carefully specified model and one that has been proven to work in other professional-service contexts.
The Greatest American Lawyer has some thoughts on:
Client Service: Law Firm Client Surveys

The failure to survey clients, I believe, is largely intentional by most law firms who spend a lot of energy keeping clients in the dark about their cases, strategy, budgets and expected results. Most traditional hourly billing firms don't have any inclination to solicit feedback from their clients because they have no intention of provoking change.
At Houston's Clear Thinkers, attorney Tom Kirkendall is having trouble reconciling disparate senetences for white collar crimes, pleading:
Help me understand this

Something is seriously out of whack here.
Professor Peter J. Henning at the White Collar Crime Blog notes changes in the timing strategies of prosecutions:
"Real Time Enforcement" - The New Prosecution Approach?

In the past white collar cases were noted for taking significant time for investigation and prosecution. Long grand jury sessions would peruse documents and prosecutors would often spend time working up the ladder to eventually prosecute high-ups.

This may be changing in some parts of the country. Noted in this post here , David Nahmias, the United States Attorney for the Northern District of Georgia, used the term "real time enforcement. This can be considered a move in a direction toward proceeding with prosecutions at a quicker speed.
Jim Calloway's Law Practice Tips Blog has little yellow dots on it, and now he's worried about your color printer:
Your Color Printer Turns Government Snitch

It sounds bizarre, but did you know that your color printer has likely been modified to provide information about your use of it to law enforcement? Yes, I know. I couldn't believe it either.
Blogger George and Lawyer George at George's Employment Blawg is beside himself about gender discrimination and sexual harassment:
Dial To Pay $3M for Strength Test with Disparate Impact on Women

A common sense approach to using a physical test that simulates a job activity for purposes of screening applicants for a manual position may well be shot down for having a disparate impact on women, as the Dial Corporation recently learned the hard way.

Mixed Messages on Sexual Harassment — and a Movie Too

Is the problem of sexual harassment getting better or worse? Should women complain to management about it more or less? Are victims better off staying on the job to fight or quitting and moving on?
Tom Collins at refers to an article in the September 26, 2005, issue of The National Law Journal titled, “How Women Can Develop Business", by Karen Bush and Elaine Metlin:
Women Rainmakers

Rainmaking is relationship building and most discussions of rainmaking approach it from a guy standpoint. Yet the role of women in the top ranks of law firms and businesses is increasing.

Differences can be strengths rather than weaknesses. As the authors of the Law Journal put it, "By leveraging some of their differences as strengths, women attorneys may discover some innovative, effective and decidedly non-traditional approaches to developing business."
Ted Frank at Overlawyered tries to set the record straight about:
Urban legends and Stella Liebeck and the McDonald's coffee case

Amazingly, rather than argue that the tort system shouldn't be judged by the occasional outlier, the litigation lobby has succeeded in persuading some in the media and on the left that the Liebeck case is actually an aspirational result for the tort system, and, not only that, but that anyone who says otherwise is just a foolish right-winger buying into "urban legends"...
Professor Dale Oesterle at Business Law Prof Blog highlights:
Shareholder Democracy

A lot of bantering has gone on this past year about increasing shareholder democracy, especially with respect to the election of directors (shareholder access to the ballot, majority voting for election of directors). Obviously, this bantering presupposes that shareholder democracy should be increased. What has struck me is that does not seem to be the message coming from the marketplace. There are many publicly traded "totalitarian regimes" out there, i.e., public companies that are controlled by one or a few shareholders. Google is perhaps the best known example.
Marc Mayerson at Insurance Scrawl takes a look at recent case law on the ratio between the punitive damages and the compensatory damages:
It’s Good to Be a Bad Insurance Company in America

Verily, I recognize that Benjamin Franklin helped establish the insurance industry in this country, but it does not seem likely that he or the other founders of the Republic would have intended to clothe this one class of businesses with such special, constitutional protection.
Jonathan B. Wilson looks at the recent guns and cheeseburgers legislation coming out of Congress and sees something interesting:
A Leading Predictor of Tort Reform?

The close timing of the ILR's announcement and the passage of these two bills suggests a close coordination between the ILR and Congressional leadership. Congress does not leap at every pronouncement of the Chamber, but rather it may be that the Chamber knew that action was forthcoming and timed their announcement to magnify the appearance of their involvement. If so, their announcement is something of a leading indicator of Congressional action.
Lance Koonce, writing at the Privacy and Security Law Blog, is concerned about:
Inadvertent Disclosure of Business Secrets Through Intellectual Property Filings

While theft of trade secrets tends to garner more prominent headlines, there are also a number of ways in which a company can lose control of its secrets that are unintentional, and often preventable.
Big Ron Coleman is understandably worried about name confusion with the big guy at Likelihood of Confusion:
Scientology Returns to its IP-Abusive Ways

This foray into trademark, however, is evidently something new. It won't be as easy — copyright has a sharper teeth than trademark, notably statutory damages and the notice-and-takedown provisions of the DMCA, which don’t apply to trademark infringement (real or imagined). So far the websites have been standing fast — but then again, so did the Cult Awareness center. Something to watch, and worry about.
J. Craig Williams at May it Please the Court has recovered from hosting Blawg Review #28, and is ready to get back on the horse with a submission to our Carnival of the Capitalists, and this post for Blawg Review:
Trademark Infringement Claim Rides Off Into The Sunset

A horse is a horse, of course, of course, unless the horse is the famous ... polo pony?
Denise Howell at Bag and Baggage, who's hosting Blawg Review #30 next week on Halloween, treats us to:
Pumpkin Seasoning

Also a big deal to my son at the moment is Charles Schulz's Halloween mainstay, It's The Great Pumpkin, Charlie Brown. Thirty-nine years old and still going strong, that one. I wish I could consult with a Schulz scholar on whether the author was embroiled in some nasty breach of contract dispute at the time of its creation. In addition to Sally's "I'll sue!" and "You owe me restitution!" when she realizes the Great Pumpkin just ain't gonna show and she's missed out on "tricks or treats," there's this priceless dialogue between Lucy and Charlie Brown over the annual football-pulling ritual:

CB: I guess if you have a signed document in your possession you can't go wrong. This year I'm really gonna kick that football... (Whummpp!)

L: Peculiar thing about that document — it was never notarized.
Heh. Indeed. [nod to Glenn Reynolds]

Well, that's your Blawg Review for this week. A special thanks to everyone who read through to the end. Hopefully, you enjoyed the links we selected this week. It was a bit of work putting this all together, but very gratifying if you're still with us.

I'm really quite proud of myself for getting two blog carnivals posted before the Monday deadlines, or not a minute too soon, depending on your interpretation of deadlines.

UPDATE: Note to host, before self-congratulations, make sure you haven't left anyone out who took the time to submit a good post.

E.L. Eversman at AutoMuse was not amused:
Justice for Sale?

Bainbridge blogs incessantly about Harriet and why she would be a terrible choice, and that gets total coverage, but someone points out, "Hey, a justice on the Illinois Supreme Court blatantly violated his own court's rules on when a judge must not participate in a decision and that participation dealt with reversing a Billion Dollar decision in favor of consumers", and that goes completely ignored? I interview Monroe Freedman, only the most famous legal ethicist in the country, about the topic (who was aghast, I might add, at what the Justice did) and no one thinks that's worthy of a cite?
Mea culpa.

Please check out Blawg Review every week for information about the next Monday's host, and instructions how to get your blawg posts reviewed in upcoming issues. And, while you're in the carnival spirit, you might want to look for opportunities to participate in upcoming editions of Carnival of the Capitalists, as a contributor or host. It's really good for business.