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Blawg Review #56: Sex, Virtual Weddings, and Baseball

It's been a busy week in the legal blogosphere. We're a committed group blog here at Point of Law, so we teamed up to cover the many topics summarized below. A big thanks to Larry Ribstein, Tom Kirkendall, Ted Frank, Sam Munson, and our editor Walter Olson for all their hard work.

I've sorted through everyone's contributions and tried to organize them as logically as I can, by topic. We start with the week's headline--Sex!--and proceed through Legal Academia, Legal Practice and Employment, Television and Cyberspace, Intellectual Property and First Amendment, Litigation, Corporate Governance, "Holidays and Anniversaries", and "Baseball, Death, and Taxes". If some of those are less than self-evident, keep reading. We hope you enjoy!

Headline: Sex Dominates Blogs' May "Sweeps"
It's said that sex sells, and along with blooming flowers, May ushered in some not-quite-garden-variety topics on our legal-oriented blogs.

Titillating Topics
Unlike network TV, the blogosphere does not have "Sweeps Week", but if it did, it might explain the proliferation of titillating topics on otherwise sober blogs in recent days. Not only has the Volokh Conspiracy's extensive discussion of public sex led it into such byways as "Unwanted Touching, Indecent Exposure, and Sexual Arousal", but Overlawyered has gambled its dignity by covering a Florida lawsuit summed up by its title, "Lied about her age to get into wet T-shirt contest", with the follow-up, "Wet T-shirt follies: a calm discussion".
-Walter Olson

Indecent Exposure: Protected Sex?
What started this sexual revolution on the blogs? Amber Taylor at Prettier Than Napoleon kicked off a blogosphere uproar when she asked: why is sex in public against the law? Amber takes a straightforward cui malo approach: how is flag burning less harmful (or more a form of protected expression) than public sexual acts? As Walter noted, the topic has emerged as a subject of intense discussion at VC (follow links). [See also: Christine Hurt, Professor Bainbridge]
-Sam Munson

Employment Law: Unprotected Sex
In a post entitled "Discrimination Because of 'Sex' Isn't Necessarily Sex Discrimination", George Lenard of George's Employment Blawg relates the story of an on-the-job love triangle which raises the question: is the law of Title VII sex discrimination violated when a company fires an employee to placate the boss's jealous wife? Among the events preceding the firing was the wife's (herself an employee) "finding a torn-up note 'of a sexual or intimate nature' from the plaintiff to her husband in the company dumpster, and piecing it together". All that was lacking was a live confrontation between the parties on the Jerry Springer show.

It's all about the children
Jeffrey Toback, a member of the Nassau County, N.Y. legislature, made headlines this week by suing Google for supposedly profiting from child pornography. Eric Goldman at Technology & Marketing Law Blog blasts the suit as "a publicity stunt, and a pathetic one at that", clearly precluded by 47 U.S.C. 230, which curtails liability for third-party online content:

Among other evidence of cluelessness, the complaint uses a wacky definition of "child pornography" (defined as "repulsive material that is illegal to distribute to children") that no knowledgeable lawyer would use.

Further, by coopting such a baggage-laden term, the complaint (and associated press material) misdirects just about everyone who doesn't read the complaint closely.

For good measure, it's not clear where Toback's claim to standing comes from. Goldman concludes with a hope that the judge awards sanctions against the litigious Long Islander, and that "Toback's constituents remember this abuse of the legal process come re-election time."

Employment Law: Unprotected Sex, Part II
In another bizarre employment law-related sexcapade to hit the blogosphere this week, Mississippi law professor Paul Secunda of Workplace Prof Blog relayed a juicy story in a post entitled "Hot for Teacher". It seems that Tericka Dye, a volleyball coach and science teacher in Paducah, Kentucky, had some ten years ago starred in an "adult film". Apparently determining that the film's potential distraction outweighed its utility in sex-education classes, the school board has dismissed the saucy schoolmarm. Professor Secunda also refers us to a law review article he wrote, "The (Neglected) Importance of Being Lawrence", available here at SSRN, that had considered workplace discrimination challenges relating to personal sexual expression in light of the Supreme Court's decision in Lawrence v. Texas.
-Jim Copland

In the Academy: Posts, Citations, and Blogs
Moving to the more respectable, and speaking of SSRN, legal academics this week focused on where they should post their works, how they should cite them, and the sometimes-controversial question: should blogging be fun?

A Tale of Two Sites
Many law professors post their papers both on SSRN and on Bepress. We've probably all noticed how the download totals differ in the two venues. Now from Dan Markel we have some questions, and some answers.
-Larry Ribstein

A Tale of Blue Cites
Professors may have a choice of where to post their papers, but they're often limited in how they cite their sources. New Volokh Conspirator, Jim's law school chum and George Mason prof Ilya Somin, takes to task quite sternly the Blue Book, bane of law review neophytes everywhere. Most lawyers and legal academics may find attacking the Blue Book rather stating the obvious; very thought-provoking, however, is Professor Somin's inquiry into the law and economics of why the dreaded citation authority survives. He advocates using the University of Chicago-developed Maroon Book.

Should blogging be fun?
The Harvard conference on scholarship and blogging generated a lot of discussion. Probably the most discussion was the question of the role of what I have called "hobby-blogging"--that is, blogging not related to the blogger's scholarship. Larry Solum and I see problems. Steve Bainbridge, a "mixed" (hobby/non-hobby) blogger disagrees.

Show Me the Money: Legal Practice and Employment
A lot of posts this week focused on legal practice--helpful tips to improve your lawyering from technology law to marketing to "virtual mentoring"--plus posts on the overall state of legal employment, the new hot legal ticket, mediation, and the bar's tried-and-true methods of eliminating competition.

Notes from the iTechLaw conference
Denise Howell of Bag and Baggage attends the iTechLaw conference, as both a presenter (more) and participant, and posts some highlights. The "Current Issues in Online Marketing" panel tackled such topics as spam compliance, inadvertent disclosure of customer data, and the use of third parties' trademarks as keyword triggers in ad selection. The "Open Source Software" panel (parts one and two) made clear some of the challenges tech firms face in keeping the open-source peas from mixing with the proprietary code mashed potatoes; fail to keep them separate on the plate, and you may face demands to give up your rights in the proprietary stuff.

Market Yourself: A Simple Lesson
Ellen Freedman, who looks at practice management and law firm marketing, passes on a simple lession here: "Treat every second and third and fourth tier person at a client as though they were the number one person in charge."

Watch those Taxes!
On his practice weblog, Evan Schaeffer alerts us that confidentiality agreements in settlements may trigger tax consequences for plaintiffs. The reason? Although injury awards aren't taxable, if confidentiality agreements are deemed to be for defendants' benefit, then some portion of the total settlement value might be viewed as consideration. Read the whole post, and its links, for more details.

Greed Is Good
It's all about the Benjamins, says Greedy Trial Lawyer. But for GTL, the returns for lawyers aren't cutting it. Reacting against a pro-tort reform editorial in the Las Vegas Review-Journal, GTL notes that in comparison with doctors, the growth in lawyers' median take-home pay is paltry in recent years. (The significance of looking at the median vs. the mean, I'll leave to our informed readers' judgment.)

ERISA Suits: Punching the Pension Ticket
Citing a post by Susan Mangiero at Pension Risk Matters, Paul Secunda of LaborProfBlog says lawsuits under ERISA are "skyrocketing", with case filings up from 9,167 in 2000 to 11,499 in 2004, and says he regularly tells students "that focusing on this area of the law is the closest thing there is to guaranteeing legal employment after law school."

So You Wanna Be a Mediator?
Another option for attorneys is serving as a mediator. Diane Levin at MediationBlog gives a comprehensive how-to here, with answers to five frequently asked questions. If you can't litigate, mediate! (Some of us would argue, of course, that it should be the other way around.)

We Don't Need No Competition
If you set out to devise a case that would bring unauthorized practice of law statutes into public disrepute, you could hardly have done better than the Cleveland bar, which is seeking to punish a nonlawyer for representing his own autistic son in IDEA (special-education) proceedings--even though the father and son prevailed in the proceedings, undercutting any consumer-protection line of argument. Prof. Ribstein isn't impressed with the bar's action ("I am beginning to wonder whether it's worth preserving any piece of lawyers� monopoly on legal representation"), and neither is the Berkeley, Calif. blogger who posts at Bookworm Room. [But see: Jonathan Wilson]

Virtual Mentoring: Doing It Alone
Ben Cowgill at Solo Blawg advises practicing lawyers on the merits of using two computer monitors, and he extols the virtues of "The Successful Lawyer", a book/audio CD by management consultant Gerry Riskin, published by the ABA's Law Practice Management Section. Cowgill notes that such "virtual mentoring" products can greatly enhance the productivity of sole practitioners.

Virtual Reality: Law of (and As) the Telecosm
Speaking of "virtual mentoring", the world of virtual reality opens up many new legal issues, as Sam Munson explains.

The Real World: Attacking Hacking
An update from the increasingly real world of online simulations: Linden Labs, the developers and purveyors of the popular virtual world Second Life, have begun to mull action under the Computer Fraud and Abuse Act against hackers who waged a denial of service attack against the site. As Robin Harper, a VP at Linden, put it: �It disrupts events. People have weddings planned or a party or something, and it gets in the way."

Night Court: The Next Generation
The "reality television" craze has long since entered the courtroom, even if the Supremes are still resistant. But those of us who remember fondly the 80s sitcom "Night Court" might want to check out Court TV's latest offering, Fluorescent Justice, that covers New York's actual night court. J. Craig Williams has the scoop.

If TV Fails, Go Back to Law
Speaking of TV legal reality shows, Evan Schaeffer notes that celebrity-lawyer-turned-failed-television-star Roy Black had a good week by going back to his traditional area of expertise: practicing law. Schaeffer suggests that Black got a good legal result for Rush Limbaugh in his OxyContin case.

Can You Say That? Intellectual Property and First Amendment
Speaking of television, studios have been behaving oddly from the perspective of an intellectual property guru. And ever worry about our liability as bloggers? Read on.

A Studio Mystery
Tim Wu at the Lessig Blog wonders why "movie studios regularly purchase the film and television rights to newspaper stories", even though copyright law does not in fact protect rights in real-life stories. Are the studios throwing their money away, or do they reasonably believe they might get sued despite the state of the law, or what?

They're Not Called "American Lawyer" for Nothin
What happens when Bruce MacEwen of Adam Smith Esq. writes four blog posts on the 2006 AmLaw 100 law firm listings (one, two, three, four) and then gets a menacing call from American Lawyer's assistant general counsel, informing him he's violated AmLaw's copyright? Find out here.

The Maine Event
When it comes to suing bloggers, Evan Brown describes the events surrounding Warren Kremer Paino Advertising, LLC v. Dutson, in which an advertising company sued a blogger for defamation. After an outcry on the net, the plaintiff dropped its case.

Breathe Easier Bloggers
Along with the attendant risks of getting sued, do you ever worry if your blogging could get you fired? Blogdaddy Eugene Volokh covers at some length the First Amendment status of blogging--specifically, the question of whether a private employee can be fired for the content of a blog. In California, Colorado, Connecticut, D.C., Louisiana, New York, and quite a few other jurisdictions, at least, it�s harder than you might think.

Litigation: Your Brain on Drugs
We are at Point of Law, so we couldn't do a Blawg Review without some attention to the wacky world of litigation. This week, we've seen discussion here and elsewhere in the blogosphere about Vioxx, evidence standards, medical malpractice, and a wacky age discrimination case you won't want to miss.

Drugs and Dollars
Eric Seymour over at In the Agora points us to a Sebastian Mallaby column in the Washington Post that outlines the "insanity" of our tort system as evidenced by the Vioxx trials. Even as our courts are indiscriminately punishing drug companies for individuals' injuries that are impossible to link causally with the drug in question, Seymour notes, via Derek Lowe, that the D.C. Circuit just determined that sick individuals have a due process "right" to take drugs that have passed Phase I clinical trials, i.e., those not yet through the full FDA review process. Speaking of Vioxx, Ted Frank points us to a new study, the first to suggest Vioxx elevates short-term users' risk of heart attack. As Ted notes, the increased risk should be insufficient to support causation as a rule of law, but don't hold your breath for judges to adopt that standard.

Evidence in the Courts
The last bastion of defense against wacky jury verdicts is the evidence introduced in court, as my colleague Peter Huber noted some fifteen years ago. This week at Point of Law, we've chronicled two major decisions on expert evidence--both of which are troubling. First, Ted Frank pointed to a New York decision weakening the state's Frye evidence standard. In federal courts, David Bernstein reports (here and here, cross-posted with Volokh Conspiracy) that judges are ignoring Federal Rule of Evidence 702. [Peter Nordberg at Daubert on the Web offers a thoughtful, lengthy reply.]

Malpractice Maladies
President Bush kicked off last week giving a speech on medical malpractice liability reform. Ted Frank and Martin Grace's take-down of the Center for Justice and Democracy has stirred up quite a reaction. Our folks at Point of Law this week spent some time exploding myths and chronicling events in states including West Virginia, Texas, Pennsylvania, and Arizona.

Painting the Town
A federal judge has temporarily restrained the enforcement of a New York City law barring persons under age 21 from buying spray paint and markers, often used for perpetrating graffiti, on the grounds that it's unfair for the law "to single out 18- to-20-year-olds� for restraint. Ron Coleman at Likelihood of Confusion does a double take.

Corporate Governance Round-up (At the Houston Corral)
In the world of corporate governance this week, all eyes were on Houston, where the Enron trial is finally winding down.

Houston, do you read me?
With the criminal trial of former key Enron executives Ken Lay and Jeff Skilling drawing to a close in Houston, an interesting discussion developed in the blawgosphere over the public policy implications of criminalizing corporate agency costs--i.e., the costs attributable to the divergence of interests of shareholders and managers in a corporation.

  • I kicked off the current round of discussion on this issue a couple of weeks ago in this post that examined the massive direct and indirect costs of criminalizing questionable business decisions within the prism of hindsight bias.

  • Stephen Bainbridge followed with an excellent TCS Daily column in which explains corporate agency costs and why shareholders deserve protection from theft, but not from risk-taking.

  • Fred Tung followed on Bainbridge's column with this post in which he suggests that the question of whether agency costs should be subjected to criminal prosecution is an analytically separate question from the standard features of the criminal justice system that often make such prosecutions appear to be heavy-handed and unfair.

  • Larry Ribstein then chimed in with this post that lists seven risks to justice and the rule of law that result from a policy of criminalizing corporate agency costs, one of which is discussed in my later post on the threats to various business executives that New York Attorney General Eliot Spitzer has made while criminalizing corporate agency costs over the past couple of years.

-Tom Kirkendall

Whose heads are really in the sand?
Noting the often nebulous issues relating to intent in prosecutions involving alleged business crimes, Peter Henning provided this excellent analysis of the "Ostrich" jury instruction that allows jurors to infer intent if the defendant was deliberately ignorant or willfully blind regarding criminal conduct of other corporate employees.

What's going on with Disney?
Some of us think this major opinion is long due, and that the delay may be a sign of impending reversal. Gordon Smith thinks the Delaware Supreme Court is "playing with my mind."

Howard Stern and options expensing
John Berlau suggests that maybe it's time for Howard Stern to sound off on options expensing, a "stupid rule" that can impede growth by keeping firms from compensating and attracting talent.

Pension politics: The art of the opt-out
Over at the Wall Street Journal's law blog, Peter Lattman reports on the increasing trend in securities litigation, led by our friends at Lerach Coughlin: the opt-out. Seems that one way around the PSLRA's lead plaintiff provisions is simply to get a big, political public pension fund to hire your firm ouside the broader class (I wrote earlier on the politics of public employee pension funds and the plaintiffs' bar here and here; see also my recent testimony here).

The dangers of rose-colored glasses
Finally, in this entertaining post, Jeff Matthews wonders why Ken Lay is on trial at all given that he is accused only of giving upbeat public statements as Enron was falling apart--"don't rose-colored glasses exist everywhere in corporate life as well as on Wall Street?"

Holidays and Anniversaries
As we approach the end of this edition of Blawg Review, it's worth celebrating a holiday and a couple of anniversaries.

Balkinizing Bush
Last Monday was not only May Day, but also--for good or ill--Law Day. Prof Jack Balkin takes issue with what he considers President Bush�s too-flexible idea of the where executive power stops and the rule of law begins. The highlight? An accusation of creeping Nixonism.

Experienced Blawgers
At Concurring Opinions, Daniel Solove marks his one-year anniversary as a blogger by reprinting his reflections, a month into the process, on "How Blogging Changed My Life". And Howard Bashman of How Appealing, celebrating his fourth blogging anniversary from his new home base at Law.com, has announced that he's planning to revive one of his most popular features, the continuing series of interviews entitled "Twenty Questions for the Appellate Judge". Notes Ted Frank, "On a day where he also took his son to an Arena Football game, Bashman managed fifteen posts with dozens of links."

Baseball, Death, and Taxes
Finally, looking at some revelations and sightings in the blawgosphere, Ted Frank notes some eerie coincidences. As we sign off this week's Blawg Review, Ted--and we--can't avoid death and taxes.

Mystery blawger revealed
After much speculation, anonymous Volokh Conspiracy contributor Juan Non-Volokh revealed himself to be Jonathan Adler. Will Baude claims he knew it all along. Whether or not that's true, he does win $5 from Heidi Bond, who thought JNOV was a woman; as opposed to Paul Horwitz, who speculated AI program. Adler and former A3G David Lat spoke at the Computers, Freedom, and Privacy Conference, and Daniel Solove live-blogged it, as well as had his own commentary.
-Ted Frank

It's baseball season
Also, while we're celebrating anniversaries, note that this is Blawg Review #56; Joe DiMaggio's 56-game hitting streak ended versus the Cleveland Indians; Adler teaches at Case Western Reserve Law School in... Cleveland! Coincidence? Well, yeah, probably.

More coincidences: A3G is back!
Another coincidence: Paul Simon and Art Garfunkel sang "Where have you gone, Joe DiMaggio?" And "Art Garfunkel" is almost an anagram for "Article III Groupie." Where have you gone, Article III Groupie? Well, she's back, complete with a judicial condiment appropriate at any baseball game.

...And so is Stella Liebeck
Joe DiMaggio went on in life to become Mr. Coffee. And speaking of coffee (wait for it) could the blogosphere possibly go a week without mentioning the McDonald's coffee lawsuit? Nope: "Flooded Lizard Kingdom" falls for the trial lawyer hype and repeats all sorts of tales about the lawsuit that Overlawyered exposed as urban legends long ago. The NAM blog also mentioned the Liebeck lawsuit in the non-urban-legend sense in the course of a new post highlighting the Victim's Project, asking for victims of lawsuit abuse to come forward to tell their stories.

Clash of the Titans
Joe DiMaggio had classic battles with another baseball titan, Ted Williams, and it's similarly big news when Judges Easterbrook and Posner write opposing opinions, even when it's a tax case. Legal titan Eighth Circuit Judge Arnold weighed in on Easterbrook's side in the case of Colson v. United States last Friday, and Paul Caron and Joe Kristan comment.

Those Unavoidable Death and Taxes
Joe DiMaggio was a centerfielder. Another late centerfielder, Kirby Puckett, has a will that is the subject of a Death and Taxes blog post.

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.