Blawg Review

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

Blawg Review #59

Today is Memorial Day in the United States of America, a day to honor those who made the supreme sacrifice and gave their lives in the service of their country. We take this opportunity at Blawg Review to show our respect for fallen warriors, recommending the following as part of your Memorial Day observations.

Editor's view: Memorial Day is a holiday we haven't ruined
Memorial Day is one of the best holidays we have because it's one of the few we haven't ruined by shifting the focus to consumption and entertainment.

Memorial Day, thankfully, isn't about us -- it's about them.

Them includes two groups: first, those who died serving our country; and second, children, whom we have an obligation to teach about the sacrifice of those who came before.
Military History of America
As of 2006, the U.S. military consisted of an army, navy, air force and marine corps under the command of the United States Department of Defense. There also is the United States Coast Guard, which is controlled by the Department of Homeland Security. In each of these branches of military, the President of the United States is the commander in chief of the armed forces. In addition, each state has a national guard commanded by the state's governor and coordinated by the National Guard Bureau. The President of the United States has the authority during national emergencies to assume control of individual state national guard units.
United States Casualties of War
In which war did the most Americans lose their lives?
National WWII Memorial
The World War II Memorial honors the 16 million who served in the armed forces of the U.S., the more than 400,000 who died, and all who supported the war effort from home.
Vietnam War Memorial: Experience the Wall
Why Do I Weep at this Wall? Freedom is just a fancy word to many but to those who risked everything and to those who lost their beloved warriors and have only these names on a beautiful wall left to them, freedom is the crown. Freedom is the warriors’ crown but it is we who get to wear it. They earned it for us all to wear. Let us use our freedoms well and honorably. Speak your mind but do not abuse the servant warriors who protect the very freedoms that permit you to speak as you do. Why do I weep at this wall? I weep for you!
Cpl. Pat Tillman died April 22, 2004, in Afghanistan
At his memorial service, mourners remembered the 27-year-old Tillman as an inspiration to thousands of Americans. California's first lady Maria Shriver was among those supporting the family, recalling how much Tillman gave up to fight for his country in Afghanistan. (Watch a CNN animation of how Tillman met his death -- 3:22)
The Memory Hole: Photos of Military Coffins
What is the Dover test?
No True Glory: A Frontline Account of the Battle for Fallujah
Based on months spent with the battalions in Fallujah and hundreds of interviews at every level senior policymakers, negotiators, generals, and soldiers and Marines on the front lines No True Glory is a testament to the bravery of the American soldier and a cautionary tale about the complex and often costly interconnected roles of policy, politics, and battle in the twenty-first century.
Combat Diary: The Marines of Lima Company® on A&E
Most effectively, "Combat Diary" helps put a human face on those slain, who otherwise risk becoming mere statistics. review
CNN Special Report: U.S. & Coalition Casualties
There have been 2,684 coalition deaths, 2,462 Americans, two Australians, 111 Britons, 13 Bulgarians, three Danes, two Dutch, two Estonians, one Fijian, one Hungarian, 30 Italians, one Kazakh, one Latvian, 17 Poles, two Romanians, two Salvadoran, three Slovaks, 11 Spaniards, two Thai and 18 Ukrainians in the war in Iraq as of May 26, 2006, according to a CNN count.
Defend America: Fallen Warriors
Here we honor those who died while serving their country in the global war on terrorism.
Blawg Review #32, last Veterans Day at JAG Central, reminded us:'s important to remember the sacrifices of those who serve quietly, behind the scenes. In Army JAG Offices, those are often the warrant officers who serve as our legal adminstrators. They make the office run, from installing and maintaining IT equipment, to balancing the office's budget. One such quiet professional who made the ultimate sacrifice was Chief Warrant Officer 5 Sharon T. Swartworth.

CW5 Swartworth was killed in action on 7 November 2003 in Iraq when her helicopter was shot down while visiting JAG soldiers in the field. Those who knew her agree that she symbolized the finest traditions of the JAG Corps.
Last year, on Memorial Day, Mike Cernovich at Crime & Federalism hosted Blawg Review #8, which he prefaced with these heartfelt remarks:
Blawg Review #8 lands on Memorial Day. Hopefully most of you aren't working, and thus have some time to remember those who died in faraway lands. Bruce MacEwen and Ken Lammers share two powerful images here and here.

Gary Trudeau is using his Doonesbury strip to list the names of those who died fighting in Iraq, and Ted Kopel will read the names of the dead soldiers on his television program. Before you yell that they hate America for reminding us that people die in wars, read the preface to We Were Soldiers Once...And Young - which I was required to read before becoming an Army officer, and which is required reading at West Point. In We Were Soldiers, a battalion commander recounts the Battle of Ia Drang, and in the preface to his book, lists those who died in the battle - on both sides. Freedom, in Iraq or in America, isn't free; we should always remember the cost, not as a partisan ploy, but as citizens respecting the dead.

Today I'll remember the death of 1LT Brian Slavenas, a close friend with whom I [Cernovich] attended Officer Candidate School. He was shot down over Fallujah, piloting a helicopter that, had I not decided to move to California for law school (and instead had attended the University of Illinois), I would have been flying. Brian was a kind and intelligent person, one whose accomplishments and intellect dwarfed his ego. We're all worse off that he's not with us.

Let's get into this week's Blawg Review #59 proper with a lawyer who is well-known beyond the legal community for his milblog, Intel-Dump. Phillip Carter is an associate in McKenna Long & Aldridge's Los Angeles Office, where he is a member of the Government Contracts practice group. He also practices in the area of international law. In July 2005, Phillip was mobilized by the U.S. Army for Operation Iraqi Freedom. He will be on leave from McKenna Long & Aldridge until December 2006.
Phillip Carter reviews The Making of the Atomic Bomb

The Making of the Atomic Bomb, by Richard Rhodes. There is surely some irony in my decision to read Richard Rhodes' The Making of the Atomic Bomb during my tour in Iraq -- where, apparently, there never were any atomic bombs. Nonetheless, it's been on my book list for some time. I've always wanted to learn more about the history of the Manhattan Project, the undertaking which decisively ended World War II. So when I saw a paperback copy at Borders on my last night of leave in L.A., I decided to pick up the 800-page book, figuring that it'd help pass the time on my long plane flight back to Iraq.
From Iraq, Phillip Carter posts his thoughts on:
Memorial Day

Others have said it more eloquently than me. However, I'd still like to join the chorus of voices calling for a simple act of remembrance this Memorial Day for the hundreds of thousands of America's men and women who have given their lives in uniformed service since the holiday was created after the Civil War. We collectively owe these fallen warriors a tremendous debt — a debt which can never be repaid. All we can do is honor that which they stood for, and fulfill in our words and deeds the ideal which they died for.
On the Law of War and Just War Theory Blog, Professor Kenneth Anderson presents an excerpt from a paper in progress:
Democratic legitimacy, what non-Americans think about American policy, and the war on terror

The American people will not engage with the struggle against a transnational terrorist threat over the long run unless it is consonant with deep American values. Americans have not historically been very willing to support in blood and treasure – and, today, attention span – long running wars or foreign policy agendas that do not seem to them both necessary to the national survival and broadly just.
David Giacalone at f/k/a presents:
haiku moments - memorial day 2006

vietnam memorial --
a tear in the
old protestor's eye


Photo Credit: Susan Scott Teachey, ON-Q Design, Inc., from the Rolling Thunder Motorcycle Rally in support of MIA and POW.

John Pape & Marc Chandler should start a Motorcycle Law Blog, where they could write more great stuff like these choice words from their website:
Beware the attorney who assumes that he’s dignified and professional merely because he sports a neat little newscaster hairdo, sleeps in a business suit and works for or represents large corporations. You know the type of stuffed shirt we’re talking about. Professionalism and dignity are not products of such superficial nonsense. Some of the most dignified, loyal and trustworthy people we know haven’t worn a suit in years and have long hair and multiple tattoos. At Pape & Chandler, we believe that dignity and professionalism are qualities that you have to earn like a soldier earns his stripes.
Sadly, as bikers and lawyers know all too well, the reputation of any group of law-abiding people can be tarnished by a few bad men.

Mary Katherine Ham, blogging with Hugh Hewitt, asks, "What happened in Haditha?"

I urge everyone (except young children) to watch a movie on A&E today, Combat Diary: The Marines of Lima Company®, which follows U.S. Marines into combat in Iraq during this period of the war. Interviews with the surviving Marines of Lima Company, and their personal videos recorded during IED attacks, firefights, and house-to-house searches, put the war in Iraq into context. This is the war seen through the eyes of the combatants, and recounted in their own words so that their friends who died might be remembered -- giving us a perspective on what happened there that is not often reflected in the press or on blogs that view the war through red or blue tinted glasses.

It wouldn't be good to end this Blawg Review on such sad thoughts, so we turn now to the Power Line blog where Paul Mirengoff and John Hinderaker have:
Something to Smile About

By a vote of 57-36, the Senate has confirmed Brett Kavanaugh's nomination to the D.C. Circuit.

Gen. Michael Hayden has been confirmed as CIA director on a lopsided 78-15 vote.

These are critically important posts. It is hard to overstate the importance of having a reasonably conservative President in the White House, and a Republican majority in the Senate.
The end is near. But it wouldn't be a complete Blawg Review if we didn't include links to some of the best blawg posts of this past week, even if they can't be worked into the theme of this special issue seamlessly. Here are some more of our favorites this week.

Professor Lawrence Lessig recommends Davis Guggenheim's film based on Al Gore’s lecture series slide-show concerning global warming. Lessig's review of An Inconvenient Truth is effusive.
I have seen the slide-show. It is — by far — the most extraordinary lecture I have ever seen anyone give about anything. And I’ve now seen the film, An Inconvenient Truth, twice.

I will rarely ask favors of those who read here. But this is one. No issue is as important. I doubt you will ever see an argument as compelling. And though this is a beautiful and pasisonate film, it is, in the end, an argument that gets built upon the ethic that guides at least some conversation in places like this — facts, reason and a bit of persuasion.
Back at Power Line this weekend they marked the blog's fourth year online, with this astute observation:
Happy Birthday to Us

We've often said that there is no significance to the "blog" format except that the software allows anyone, no matter how unskilled technically, to maintain a web site and thereby communicate with just about anyone in the world. We exemplify this enablement of the non-technical, although we have picked up a modicum of web skills over the years.
Underscoring this reality-check, John Hinderaker highlights some inconvenient truths in this post:
Gore in the Balance

When Scott and I began our writing career in 1992, one of our first articles was "The Global Warming Hoax." Regrettably, it is not available anywhere online.
And,while Lawrence Lessig discusses NN and FU in another post, Kevin Heller, who hosted a well-regarded Blawg Review #58 at Tech Law Advisor last week, draws on his personal experience in trademark law to explain the important legal differences between FUBU and BUFU.

Evan Schaeffer's Legal Underground sparks a discussion in the comments there concerning a class action against Apple Computer that went awry:
Named Plaintiff in Nano-scratch Class Action Did Not Authorize the Lawsuit

In an "Open Letter to the Mac Community," Jason Tomczak explains why he did not "approve, endorse, authorize, initiate or promote" the Nano-scratch lawsuit against Apple. According to Tomczak, his name was used on the lawsuit without his permission. Then all hell broke loose: "I began getting hate mail from people upset about the iPod Nano suit. I had to take my website down and remove legitimate references to my name on numerous web services. My fiancee and I were afraid to go outside in our own home town for fear of recognition and reprisal."
Denise Howell at Bag and Baggage has an extraordinary post about the EFF victory in a decision ruling against Apple Computer, Inc. In an action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple's secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers, the court held on appeal that it is improper for Apple to be able to compel the identity of the bloggers' sources.
Apple v. Does Decision Issued

Though the media coverage of the opinion is bound to focus on the shield law and constitutional protections here extended to online journalists, in this era of ubiquitous use of email services originating with third parties the portions of the decision applying the Stored Communications Act might well have even broader impact.
Markos Moulitsas at the Daily Kos calls this "another big ruling in favor of bloggers."

Rodney, guestblogging at Crime & Federalism reports on another recent case:
Doe v. Gonzales: Disclosure under the Stored Communications Act

This case is interesting because it involves constitutional challenges to elements of the Stored Communications Act (SCA), which protects electronic data and stored messages from unauthorized access and disclosure.
KipEsquire at A Stitch in Haste discusses the First Amendment in time of war, in this thoughtful rant:
The Strange Case of "Gonzales v. History"

Trying to skirt around FISA is one thing. Trying to skirt around the Fourth Amendment is not much harder these days. But if Gonzales or Bush or their apologists think that they can steamroll over the First Amendment with their outrageous and obnoxious legal theories, then they are gravely mistaken.
Michael Webster, Ph.D, LL.B., provides an international public service for assessing business opportunities and avoiding biz op scams and new business opportunities fraud. This week, his Psychology of Compliance & Due Diligence Law blog takes a look at game theory for trial lawyers.
Strategic Thinking - What Lawyers can Learn from Poker Analysis

What do poker players have in common with trial lawyers, anyways? Succinctly, each has to solve the game theoretic question: "if he knows, that I know that he knows ...".
Diane Levin's Online Guide to Mediation, which hosted a fabulous Blawg Review #43, is recognized as the #1 mediation blog by the National Institute for Advanced Conflict Resolution(NIACR), which recently announced the winners of its first Annual Mediation Blog Roundup, naming the top five mediation blogs.

Point of Law Forum features an interesting discussion we'll call Wilson v. Ribstein, where these thought leaders pick up their lawyer licensing debate from two weeks ago, expanding the discussion and going into greater detail.
Is Lawyer Licensing Necessary?

The topic must have touched a nerve, as a number of the leading blawgs chimed in and even the Wall Street Journal conducted an online poll on the topic.
Demonstrating how blogging advances the exchange of ideas in ways an article in a legal magazine or law journal never could before, Howard Bashman at How Appealing has some further thoughts on:
Dead Judges Voting: When Does Life Tenure End?

The central reason why I believe it is necessary for the majority on a divided appellate court's panel to remain among the living as of the date judgment is issued in the case is that the judges in the majority, up until the date on which the judgment is filed, retain the right to change their minds. While such a last-minute change of mind may occur infrequently, if ever, it remains a possibility. And thus, if an appellate court's judgment is filed on a date after the death of a judge whose vote in favor of the majority was dispositive of the outcome, it is impossible to know with the necessary absolute certainty that the judgment in fact reflects the views of a majority on the panel as of the date of the judgment's issuance.
On the Between Lawyers group blawg, Denise Howell discusses Generations, Culture, And Corporate Communications.

On his blog, Passion, People and Principles, David Maister has some ideas about attracting and motivating a new generation of employees:
Keeping the Kids

What a young person needs (in addition to a good paycheck) - in fact what he or she MUST have - is the opportunity to work on stretching, challenging interesting things - the chance to build skills.
PG at De Novo weighs in on height guidelines in sentencing with this thoughtful post concerning a judicial decision that is causing a visceral reaction in the blogosphere:
Little Justice

I've never found prison rape to be particularly funny, and after editing an article about the shortfalls of the Prison Rape Elimination Act, think that it's the ugliest symptom of an array of problems in the American system: overcrowding, lack of rehabilitation, cut ties with the outside world, etc. That said, I can recognize the irony of deeming a child molester to be too small and easily-victimized to go to prison.
Scott Martin at ALM's Legal Blog Watch has a lengthy post about white-collar criminals who are apparently not too big to go to prison:
Digesting the Enron Verdict

The big story is in: The long-awaited day has come for the Enron trial as Kenneth Lay has been convicted of all six counts against him and Jeffrey Skilling has been convicted of 19 of the 28 counts against him for conspiracy to commit securities and wire fraud. Observers of the Enron case have weighed in across blogs.
Matt Barr at New World Man asks the big question, today:
Who do you trust with your Constitution?

Framing all this as "I'd rather the Court than the legislature be in charge of figuring out what's constitutional" is sure to get an amen from the choir, but isn't really on point. A democracy rarely settles anything for once and for all. Every argument against our lives being run by a bunch of rich white men who lived 200 years ago equally applies to a group of nine people living comfortably in Washington today. Within specific limits -- the "abridging freedom of speech" and "no warrants shall issue except on probable cause"-type, clearly established limits -- we should be able to work things out for ourselves. Well, yeah. That's not just an argument in favor of a "living Constitution," it's an argument in favor of the Constitution.
Law professor Glenn Reynolds at InstaPundit says members of Congress are making a bogus Constitutional argument instead of using their undisputed legislative powers to avoid the very kind of legislative responsibility to the voters that the Constitution, and separation of powers, places squarely in their laps.
More on Congress and the Separation of Powers

What's frustrating in these discussions is the failure to distinguish between what the law should be in somebody's opinion, and what it actually is, based on the Constitution and the caselaw.
At Clever WoT, Kurt Hunt has posted a very nice legal analysis about a military spokesperson's denial that "dazzling" lasers being developed by the military are illegal weapons.
Did the U.S. Army just acknowledge a customary ban on permanently blinding laser weapons?

We can ignore the whole "optical incapacitator is not a weapon" argument. Call it a nonlethal weapon, fine, in the same way that tear gas is a non-lethal weapon. But unless you're lost in Spinland, a device designed to "temporarily blind" people who are potentially posing a military threat is a weapon. Let's call it what it is.
Professor Dan Solove at Concurring Opinions has two excellent posts about the massive data security breach by the Veterans Administration, affecting 26.5 million veterans.
The Government's Data Security Breach and "Data Neutralization"

Private vs. Public Sector Responses to Data Security Breaches
Next week's Blawg Review #60 will be hosted by Marty Schwimmer at The Trademark Blog, which has a topical post for this Memorial Day:
WEST POINT brand Military Academy

The Department of the Army owns a federal registration for WEST POINT covering multiple goods and services. West Point Graduates Against The War is an organization of West Point graduates against the war. The Army has sent them a demand letter.
Excerpts from the Commander in Chief's Address to the graduating Class of 2006 at West Point on Memorial Day Weekend

Andy Rooney On How Memorial Day Should Be Celebrated
Remembering doesn’t do the remembered any good, of course. It's for ourselves, the living. I wish we could dedicate Memorial Day, not to the memory of those who have died at war, but to the idea of saving the lives of the young people who are going to die in the future if we don’t find some new way - some new religion maybe - that takes war out of our lives.

That would be a Memorial Day worth celebrating.

We hope you appreciate this special presentation of Blawg Review for Memorial Day 2006 and will mention it on your blog with a link to direct your readers here to have a look for themselves.

If you're new to our Blawg Review project, please spend some time checking out the Past Issues linked in the sidebar on the home page. There, you'll also find information about Future Hosts and instructions how to get your law blog posts reviewed in upcoming issues.

Your editor has updated this issue of throughout the day, linking here some of the best posts found on law blogs today, as follows:

Nerdgirl at Nolo Contendere says, "Just remember what this day is, and what it means."

Diane Murley at Law Dawg Blawg recalls the history of Memorial Day.

Bob Coffield at Health Care Law Blog says, "Memorial Day is a time for West Virginians to remember why Mountaineers Are Always Free and will continue to fight for freedom in many ways."

Marc, an attorney in Texas, writes at Marc's Miscellany: Let us remember that Congress has actually called on us to observe Memorial Day by praying, according to our individual religious faith, for "permanent peace."

Professor Bainbridge remembers his grandfather, Irwin, who served in the 17th Cavalry during WWI.

Professor Howard M. Friedman at Religion Clause notes that President Bush signed into law the Respect for America's Fallen Heroes Act, which bars demonstrators from disrupting military funerals at national cemeteries by banning protests within 150 feet of a road into a cemetery, and within 300 feet of a cemetery entrance if the protest impedes access or egress.

Jill, who's studying for the Bar, writes on her Yellow Snapdragons blog: "I would die, and I would kill, to protect the Constitution of the United States...I would have said that before law school, but since I've spent so much time studying the Constitution, my appreciation of the document is has more depth and breadth now. I am not always grateful for the decisions made about what to do with our military, but I am always grateful to those who serve.

In a Memorial Day Essay on War and Taxation, Professor James Maule writes, "To all those who have served, and who serve, I and every other citizen owe thanks. Here it is. Thank you. Now let us go and do what needs to be done to put meaning into those words."

Betsy, remembering a soldier again on My Whim is Law, writes poignantly, "My worldview shifted dramatically two years ago today, with the death of Army Specialist Joseph Jeffries in Afghanistan. Now, the Memorial Day holiday is a bittersweet one. The tears are bitter ones - anger at the loss of a father before he ever saw his son’s face, coupled with grief for this generation of parents now burying their children."

A twenty-somethingish Obsessive Law Student reflects on another Memorial Day with a personal story: "But, the day still makes me sad. I still cry when the old men walk by, trying to keep straight lines as they march. I don't know why I cry - I didn't when I was younger. But, now in my not-so-old age, I cry when they walk by, knowing that some are still haunted by the things they did and by what they endured. Knowing that they left friends long ago on battlefields I studied as a high school student. I cry when the younger guys walk by, too, thinking of my friends who are currently serving. Thinking of Baby Sis and her shipmates and knowing what they've endured. Not big sobbing cries, but little tiny teardrops that pool under my eyes until I blame the sun and wipe them away."

Douglas Sorocco at Rethink(IP) writes: "Blawg Review #59 literally made me weep this morning – the sense of pride for what our nation’s military men and women have done in service to our country and the ideals of freedom, coupled with a profound sadness for the loss their families have endured, pointedly reminded me of the reason why all Americans should offer thanks and gratitude ever day of the year, not just Memorial Day."