Blawg Review #39

"Adam Smith, Esq." is honored and delighted to host Blawg
Review #39; I consider myself in excellent company given
the distinguished and talented people who have hosted Blawg
Review in the past.  

This week we celebrate:

Epiphany:  n.   1.  From
the Greek epiphania "manifestation," often
referring to the appearance of a divine being. Christ’s appearance
to Paul on the Damascus road was an epiphany. The word is used to describe
the first appearance of Christ to the Gentiles in the visit of the
Magi to the baby Jesus (Matthew 2:1-12), an event celebrated January
6.
2. Epiphany in fiction, when a character suddenly experiences a deep
realization about himself or herself; a truth which is grasped in an
ordinary rather than a melodramatic moment.

The most famous representation of "The Epiphany" in art
history is doubtless Giotto’s (more
formally, Giotto di Bondone:  Italian, Florentine, 1266/76–1337) from
New York’s own Metropolitan
Museum of Art:

My wife, who majored in art history at Vassar, has indelibly memorized
this educational little ditty placing Giotto in art-historical context:

"Giotto, Giotto, Giotto-Giotto:  Renaissance
He paints in the morning and he paints at night;
If it's a Giotto it'll turn out right.
Giotto, Giotto, Giotto- Giotto:  Renaissance."   

Of course, here in New York City we celebrate the end of the 12 days
of Christmas with our own tradition:  The annual rite of The
Ceremony of the Mulching of the Christmas Trees, jointly supervised
by the NYC Sanitation and Parks Departments:

Before we begin our cyberspatial tour, like all accomplished explorers,
we need to be well-equipped.  To that end I commend to you Google
Pack, a handy-dandy Swiss Army-knife compilation of everything the
Prepared Scout of virtual-space needs, from Adobe Acrobat and Firefox
to anti-virus and anti-spyware armor.

Let the tour begin!

Alito Fireworks

"Adam Smith, Esq." is resolutely non-partisan
and apolitical.  That
said, without question the best-quality daytime drama scheduled
for this coming week will be the nomination hearings for Judge Samuel
Alito to SCOTUS—they promise an extremely high entertainment-value
quotient, and I for one intend to Tivo them in their entirety.  But
for commentary and observation, I’ll turn to those who plow these fields
for a living, starting with the newest addition to the Law.Com "Inside
Opinions:  Legal Blog Network," the consummately qualified
Howard Bashman of How
Appealing.

The "Epiphanic Moment" ("EM") from this post is Howard’s
intimate knowledge of the witnesses who will be testifying in favor
of Alito this week: "I know about all of these judges as a result of
having handled numerous appeals in front of the Third Circuit over
nearly the past sixteen years and having clerked for a judge serving
on the Third Circuit for two years before that. Here are my quick insights…"

Our friends at Law.Com have their
comprehensive "A Field Guide to the Alito Confirmation Hearings."  You
were expecting, perhaps, a red hawk pair nesting above Fifth Avenue?

Meanwhile, over at the Electronic
Privacy Information Center, they’ve a remarkably comprehensive complete
copy of a conference report from the Seeley G. Mudd Manuscript Library
at Princeton University—the conference
in question taking up "The Boundaries of Privacy in
American Society," chaired by none other than then-Princeton-student
Samuel Alito, who was responsible for putting the conference together,
doing the research behind it, and preparring the "remarkable summary
that accompanies the final report."   This should have
the C-SPAN junkies going back to their Red Bull’s for stamina.

NSA Surveillance Fireworks

Also on the late-breaking political newsfront, we have the story
that our very own NSA ("No Such Agency") has developed an expertise
in data-mining that Wal-Mart would envy, but rather than applying it
to how our household purchases index on Crest and Pampers, they’ve
applied it to determine how many degrees of separation lie between
you and Osama.

Jay Leno has his own take on this revelation:

According to a new poll, President Bush’s approval ratings are on the rise. A lot of these polls are phone polls and people were worried Bush is listening in.

Kierkegaard Lives, a new blog to me, provides a "wire-tapping
link
repository"
aiming to constitute one-stop-shopping for digerati running down primary
sources on this. 

For the attention-span challenged, yesterday TalkLeft uncovered a Congressional Research Service report questioning the NSA/White
House’s authority.  EM from the summary:

"The 44-page report said that Bush probably cannot claim
the broad presidential powers he has relied upon as authority to order
the secret monitoring of calls made by U.S. citizens since the fall
of 2001."

For the record, I do not subscribe to the cynical view of this imbroglio
that it’s merely a matter of whose ox is being gored—that if
you’re an upstanding American citizen you have nothing to fear from
the snoops, so what’s your problem, buddy? Rather, I view the debate
as the latest incarnation of the timeless, "no permanent solution"
tension between human liberty and free and open societies, and the
reality that "the Constitution is not a suicide pact."

Lawyers Behaving Badly

This topic can only be introduced by:  "Where oh
where to begin?!"

f/k/a reports on
a lawyer who:

"… gets three months in jail for being one of the
two major actors in a complicated scheme to steal millions of dollars
[$25.6-million, in fact] from people he himself describes as “decent,
hardworking people looking for an honest way to resolve their debt
issues.”"

How is this possible?  Maybe the judge was swayed by character witnesses,
or the lawyer’s own questionable character:

"Attorney
Lisa B. Shelkrot came up with the usual defense gobbly- gook, including:
“What stands out [in letters from prominent members of
the community] is his selflessness and commitment to
service.”
“It was a fear of destitution, not a high flying lifestyle … that
lead him to this.  Sinnott had a “deeply and tragically” flawed
personality."

My EM question to Ms. Shelkrot:  Are you yourself buying that
for a second?

And since when does being "flawed" exempt you from responsibility
for the consequences of your premeditated actions over a period of years?

We don’t apply this standard in dealing with children or dogs, and it’s
not time to start with grown, bar-passing adults.

More seriously, Jack Balkin asks whether
it now "seemed as if there was no legal proposition, no matter
how outlandish, that you couldn’t get some prominent lawyer these days
to defend."  Answering his own question, he writes:

"Lawyers have always, to my knowledge, been willing to come
up with clever and ingenious arguments for the interests they represent."

But he’s only warming up:

"Put another way, we have all known
for many years that lawyers are rhetorical whores; their job is to
confuse, obfuscate, and make unjust and illegal things seem perfectly
just and legal, or, if they cannot quite manage that feat, to muddy
up our convictions sufficiently that we conclude that it’s a close
case. There is nothing new about this."

"Nothing new?" Meaning it’s essentialy an ineradicable and hopeless
condition? Well, not quite. EM moment in bold (my
emphasis:

"Lest I be misunderstood, I do not mean to say
that law and legal doctrine counts for nothing, and that lawyers have
no independent role to play other than as political cheerleaders for
one side or the other. Rather I mean to say that the
law always needs help from other sources in political culture if it is to do its job
appropriately. The rule of law, I would insist, is not a purely legal
or professional ideal– it is a political ideal."

TalkLeft decodes what
motivates outstanding federal prosecutors to go to the defense side—and
questions whether they ever really make the transition.  "The
real problem is most of these former high-level prosecutors can’t make
the mental shift. They don’t have it in them."   Or,
as former Deputy Attorney General James Comey puts it in a quote so
rich you couldn’t make it up (EM in bold):

“You go from being paid to do the right thing every day, from having the freedom never to make an argument you don’t believe in, to being a defense attorney, where you are duty-bound to make the best argument you can,” he told the New York Law Journal. “I have a tremendous respect for people who do defense work, and it’s not lying, but in a private moment, sometimes, you say, ‘Geez,
this is a bunch of baloney.’”

And you really  anticipate even a soupcon of "zealous
representation"
on behalf of a criminal
defendant from Mr. Comey?   TalkLeft certainly doesn’t:  "Pathetic…irksome
beyond description."

For a moment’s worth of comic relief, the always-reliable Walter
Olson at Overlawyered chronicles a
Dallas restaurateur who sued the Dallas Morning News over a review
of his restaurant, "Il Mulino"—specifically,
so it would appear, over the newspaper critic’s take on Il Mulino’s
bolognese and vodka sauce.  I am pleased to be able to report
that the matter has been settled without admission of much of anything,
it seems, but with a promise of a second review from the newspaper.  "And
you’re ugly," perhaps?

The serious message here is simply, Who comes off looking worse?  The
benighted restaurateur who exponentially increased circulation of
the critical review by his action, or the lawyer who took good money
from him to help?

Craig Williams, another Scottish lawyer with a penchant for economics,
regales us
at May It Please the Court with Major League
Baseball’s claim that it "owns" all baseball statistics.  The
party offending MLB’s expansive notion of the territorial reach
of its intellectual property is one CBC Distribution & Marketing,
a fantasy baseball game operator—dependent for the reality
of its fantasy upon real-world baseball statistics.  EM of
the post:  "Next thing you know, they’ll be charging the fans
to quote statistics to one another."

Mauled Again kicks
off 2006 with a confident prediction:

"The culture of corruption, of bribery, of putting one’s
own selfish interests above those of the public one is required to
serve will also trigger yet another easy-to-predict Top Ten tax story
of 2006. At least one politician, one celebrity, and one lawyer will
run afoul of the tax law by failing to file a tax return or by failing
to pay income taxes."

What’s to be done?   You might try starting young:

"It is a challenge getting across to law students the point
that when they enter the profession, and even as law students, they
are subject to a higher set of integrity standards than those that
apply generally to citizens of the nation."

Put that on your refrigerator.

On a less consequential, but equally depressing, note, Matt Homann
of "the [non]billable hour" reports seeing a serious-minded
piece of advice that clients should not talk to
their lawyers until the deal they’re doing is completely worked out.
  What on earth would prompt such advice?  "Our
predominant business model"—the billable hour.

In contradistinction to the billable hour, Greatest American
Lawyer advocates serious, candid discussions with clients
about budgets.  The goal?  Try, "Truth."   

Over at Houston’s Clear Thinkers, Tom Kirkendall writes about "The High Price of Asserting Innocence," and sees a vicious
double standard infecting the Enron prosecution, wherein the right
to defend oneself has essentially been emasculated by trigger-happy
prosecutors and the federal sentencing guidelines’ emphasis on co-operation
as a get-out-of-jail-free card: 

"Last week, former Enron chief accountant Richard Causey
pled guilty to a single count of securities fraud and agreed to a
seven-year prison term after vigorously defending himself from multiple
charges of business crimes for over two years. Had he elected to
defend himself at trial against the charges and lost, he would have
faced an effective life sentence."

Yet another triumph of the Law of Unintended Consequences; but lawyers
created this injustice. Can’t lawyers be expected to fix it?

Part of the problem may be that lawyers can’t be expected to fix
injustices if they simply can’t be trusted in the first place.  To
that point, Dennis Kennedy recounts the "baffling" decision of
the Florida Bar’s Board of Governors to prohibit lawyers from looking
at metadata—presumably on the principle that gentlemen don’t
read other gentlemen’s mail.  To my mind, the only conceivable
rationale for such (a feckless) rule of "Enforced Ignorance" is
that the children can’t be trusted near the liquor cabinet.

Is there hope?  Point of Law writes about "Merit-Based
Judging" and urges all
of us (is the MSM listening, here?) to get the notion out of our
heads that judicial decision-making is a clone of the legislative
process, where all that matters are results.  Ted Frank comes
out decisively in favor of hoping Alito will truly judge matters
strictly on the merits, and even though Frank is confessedly pro-business,
he argues correctly that "business
is better off in the long run with a judge and judiciary that decides
cases on the merits"  rather than "a hack judge who makes
his or her decisions based on the identity of the parties in the
caption." 

Wouldn’t it be nice if a greater proportion of the American public
(and again, the American media) understood that "decisions based
on the identity of the parties" enjoys a one-for-one identity with
being "a hack."

Finally, we can all breathe a sigh of relief—inbetween chuckles,
anyway—at the extremely welcome news that The
Bitch is Back. 

Practice, Practice, Practice

Lest you begin to form the impression that lawyers
never get any real work done, we have an eclectic roundup of practitioners
opining on their specialties.  I’m not sure any one of this
exactly qualifies for an "EM," being, as
they are, proudly technical and rational self-contained essays,
you hey, you might learn something; I surely did.

• Ever wonder about the extraterritorial application of US Antitrust
  Laws?  You understand, of course, that ever since Alcoa (1945),
  it’s been settled that they do have some such reach.  Law
  & Society sets
  us straight (and I’m personally a sucker
  for their banner image).
• Patent Baristas educates us on the USPTO’s proposal
  to limit continuations, which have
  "become the current whipping boy."  (Who knew?!)  PB opines
  that "this has not been thought through very well," and as part
  of their argument to that effect notes (and trust me, I quote):

  "Note
  that proposed Rule § 1.78(f)(2) provides that for applications
  that fall under set proposed § 1.78(f)(1) above, there will
  be a rebuttable presumption that the nonprovisional application
  contains at least one claim that is not patentably distinct
  from at least one of the claims in the one or more other pending
  or patented nonprovisional applications. In that case, [etc.]"

  I’m willing to take them at their word.

• Staying in IP-land for a moment, The Invent Blog notes that
  David Allen’s "Getting
  Things Done" (a collection of techniques
  I heartily endorse), which relies upon tabbed folders for organization,
  wouldn’t be possible without the handiwork of one James Newton
  Gunn, who in 1897 obtained a patent for tabbed folders and
  index cards.  Respect your ancestors, I always say!
• My e-friend Ingo Forstenlechner has just completed his Ph.D.
  thesis titled "Impact of Knowledge Management on Law Firm
  Performance – An Investigation of Causality across Cultures" and
  wants to let you know that you can get a copy directly
  from him.  I’m sure Joy
  London already has hers.  Here’s an excerpt from Ingo’s
  abstract of the thesis: 

  "The set of cause and
  effect relationships at the heart of the [balanced] scorecard
  – referred to as the success map – is at the core of this research,
  which aims to investigate if the link between managing knowledge
  and financial performance really exists and – if it does – how
  it can be influenced." [And his conclusion?] […]  "This
  thesis provides the empirical evidence
  for a link between KM and organisational performance."

• Carolyn Elefant
  at My Shingle offers very practical advice (##’d 1 through
  5, in fact) for people
  seeking contract
  work from local attorneys or solos.
• And last, both Carolyn and
  I contributed to the launch of Law.com’s "Career Center" earlier
  last week.

And The Final Word Goes to The Economics of Law Firms

I hope you all saw that coming.

Patrick Lamb, at  In Search of Perfect Client
Service, essays
upon "The Essence of Leadership."  The first
thing he does, with a hat tip to Tom Peters, is distinguish
leadership from management:  "Management has a lot
to do with answers.  Leadership is a function of questions.
And the first question for a leader always is "what do we
intend to be?""

Those of you who were comparative lit majors may
be interested to know that I took off from the same Harvard
Business School paper Patrick is launching from, in a post
of my own, here.

The anonymous Wired GC kicks
off the New
Year by turning his thoughts to New Ventures, and to the pilot
fish that invariably accompany them in schools, your friends the
Venture Capitalists, and The
Top 10 Lies of VC’s as recounted
by Guy Kawasaki, who’s in a position to know.  My personal
favorite is #9 (EM included) :

"Do you know why we all know about Google’s amazing
return on investment? The same reason we all know about Michael
Jordan: Googles and Michael Jordans hardly ever happen. If they
were common, no one would write about them. If you scratch beneath
the surface, venture capitalists want to invest in proven teams
(eg., the founders of Cisco) with proven technology (eg., the basis
of a Nobel Prize) in a proven market (eg., ecommerce). We
are remarkably risk averse considering it’s not even our money."

Gerry Riskin at Amazing Firms, Amazing Practices (who
I know well, whom I hope to have breakfast with in New York this
coming week, and who deprived the world of stand-up comedy of a
potential ace when he stuck to law-land) turns the
kleig
lights on "old-fashioned bad management" at Dorsey & Whitney’s
London office, leading the en masse departure of 8 associates. What,
Gerry asks rhetorically, does it cost to recruit 8 associates? And
what firm would
"dare subtract that number from the billing revenue of some
maniac in order to determine compensation?" Another rhetorical
question.   But the EM is this:  Thanks
at least in fair measure to the blogosphere, dysfunctional
people cannot remain anonymous.

Finally, the question you’ve all had in the backs of your minds,
especially those of you contemplating hosting another Blawg Review
of your own some day: Am I glad I did it?

Yes, I thoroughly enjoyed it!  I had the chance to delve
deeper into some old friends, to meet some new ones (as it were),
and finally, to point you all towards two of my own post-children
of the past week:

• Five
  Questions (Or Is It Only One?) For Your Firm in 2006, and
• Build on Your Strengths or Tackle Your Weaknesses?

It’s good to be King For A Day.  Still, I hope I’ve done
justice to Blawg
Review #38‘s 10 Resolutions for Better Blogging.

And to all a good night, and a most merry and enjoyable 12 Days
of Christmas next year.

Blawg Review has information
about next week’s host, and instructions how to get your blawg
posts reviewed in upcoming issues.   Final Note: I’m also interviewed there.