Saturday, August 05, 2006


Legal Blog Watch
Of Street Fights and Blawgs
Pity the innocent bystander caught up in a street fight.

Last week, Kevin O'Keefe posted this item to his blog: Time hires Wonkette blogger: What's ALM paying Elefant and Ambrogi?, in which he referred to the writing that Carolyn Elefant and I contribute to this blog and asked, "Does ALM appreciate what they have with the two of them?"

Let me be perfectly clear: Neither Carolyn nor I solicited or knew beforehand of O'Keefe's post. When I saw it, I added a comment, tongue firmly in cheek, "A brilliant and insightful post."

The anonymous editor of Blawg Review took O'Keefe's post more seriously than did I, it appears. He/she wrote O'Keefe a private e-mail titled, "What's with Kevin O'Keefe," which O'Keefe then published under the heading, What's with Blawg Review editor? That, of course, brought a public response from the Blawg Review editor, again titled, What's with Kevin O'Keefe?

The issue, of course, is not whether ALM "appreciates" Carolyn and me. As I understand the Blawg Review editor's concern, it was that O'Keefe was out of place "to take up the causes of others without them having asked [him] to do so." Let me, again, be clear: I have no "cause" to be taken up by anyone, as far as ALM is concerned. O'Keefe has been a regular critic of ALM and other legal publishers for what he sees as their failure to "get" blogging and related technologies. In the post at issue, he singled out ALM CEO Bill Pollak, suggesting that perhaps he did not understand "the power of blogs and the need for them at ALM." In a private e-mail to O'Keefe yesterday, I wrote, "Funny thing is that Bill Pollak is one of the people at ALM who most 'gets' the Internet, blogs and all that jazz. To the extent ALM has taken leaps forward in this area, I suspect he's been a prime motivator."

At the same time, I believe every blogger should be encouraged to speak his or her mind on issues that affect the legal profession. As I also wrote privately to O'Keefe: "We need more rabble rousers, fewer ass kissers." I have no cause that needs taking up, but I am all for lawyers taking up the causes of others without necessarily awaiting an invitation.

Posted by Robert J. Ambrogi on August 4, 2006 at 01:06 PM | Permalink

In Law Student, Media See Citizen Kane
Not every third-year law student has $10 million in pocket change, so when 25-year-old Jared Kushner bought a majority stake in The New York Observer newspaper last week, eyebrows raised in media and legal circles alike. It was not long before some in the media saw in Kushner, a student at New York University School of Law and son of a wealthy New Jersey real estate developer currently in federal prison, echoes of Charles Foster Kane, the young newspaper publisher portrayed by Orson Welles in the 1941 film Citizen Kane.

Slate editor-at-large Jack Shafer takes the similarity a step further, drawing on Kane to offer Kushner some unsolicited advice. First, suggests Shafer, Kushner needs his Rosebud -- some reason for his interest in journalism.

"The average vanity press mogul hopes to save mankind, punish his enemies, boost his status, or revisit the remembered glories of putting out a high-school newspaper. ... If you don't have a Rosebud, get one, even if you have to make one up."

Next, says Shafer, Kushner should watch Citizen Kane a couple of times for inspiration and drop hints to others about the parallels.

"I also have a great Kane line for you to pinch. When young Kane's financial guardian asks if the muckraking he's doing with the New York Inquirer is his idea of how to run a paper, Kane retorts, 'I don't know how to run a newspaper, Mr. Thatcher. I just try everything I can think of.' There's your motto!"

Still, Shafer cautions, Kushner should not emulate Kane in all respects.

"Avoid over-eating, don't leave your wife for a bad singer, don't start a foreign war, and don't run for president."

And, of course, don't neglect to show up at law school when classes resume in the fall.

Posted by Robert J. Ambrogi on August 4, 2006 at 01:04 PM | Permalink

Sleuths Unearth Lost Brandeis Opinion
In the annals of First Amendment jurisprudence, the Supreme Court's 1927 opinion Whitney v. California is known for its concurrence by Justice Louis Brandeis in which he wrote an eloquent defense of free speech while joining in a decision against it. Although Brandeis' words seemed out of sync with his ruling, scholars largely overlooked this irony. Now, a recently published law review article shows that much of what Brandeis said in Whitney he had intended for his dissent in another case. When fate intervened to prevent one opinion's publication, Brandeis adapted his words to another.

The article, "Curious Concurrence: Justice Brandeis' Vote in 'Whitney v. California'," is written by Ronald K.L. Collins, First Amendment Center scholar, and David M. Skover, Seattle University law professor. Brandeis, they say, had written a striking dissent against affirming the conviction of Charles Ruthenberg, the executive secretary of the Communist Party. Before the opinion could be released, however, Ruthenberg died and his appeal was dismissed. 

"The story of the Whitney and Ruthenberg appeals is the story of the two minds of Louis Brandeis.  One case he didn't want to decide, but was forced to; the other he did want to decide, but was unable to.  One case impelled him to apologetic concurrence; the other provoked him to uninhibited dissent.  One case was to be resolved by procedural rules; the other on the merits with a new vision of the First Amendment.  All of this changed unexpectedly ... and the two minds of Louis Brandeis melded into one."

As First Amendment Center research attorney David L. Hudson Jr. writes:

"Brandeis' dissent in Ruthenberg would have become a leading light of First Amendment law instead of his Whitney concurrence were it not for Ruthenberg's untimely death from acute peritonitis in March 1927 before the release of the Court's opinion. Hence, Brandeis' dissent in Ruthenberg was withdrawn and lost to history until the Collins and Skover article, which includes the opinion in an appendix."

Posted by Robert J. Ambrogi on August 4, 2006 at 01:02 PM | Permalink

DA Seeks Gag on Lawyers -- but Why?
A Massachusetts district attorney wants to gag two lawyers from talking about the case of a man they helped free after 21 years in prison. In an article in this week's Boston Phoenix, writer David S. Bernstein asks why.

The lawyers, John Swormley and Harvey Silverglate, represent Bernard Baran, who was convicted in 1985 of molesting children at a day care center. In June, they won Baran's release from prison, when a judge vacated the conviction and ordered a new trial, finding that Baran's original defense was incompetent.

But now, David Capeless, the Berkshire County district attorney, has asked a judge to place a gag order on Baran's attorneys to prevent them from making public statements about the case. His argument is that discussing the case could prejudice jurors in a retrial. But author Bernstein questions that premise. He notes that Capeless, who is personally handling the Baran case, is running for re-election. He quotes another lawyer who calls the timing of the gag-order motion "odd," because Capeless is appealing the Baran ruling and "there is no pending trial whose potential jurors could be influenced."

In a recent editorial, The Berkshire Eagle portrayed this as a matter of protecting the lawyers' free speech:

"In seeking a gag order ..., Mr. Capeless argued that the defense team's comments could prejudice potential jurors. The district attorney's concerns, however, should not result in the loss of the lawyers' constitutional right to free speech. The actions of the lawyers may or may not make Mr. Capeless' job more difficult, but the search for jurors should not take precedence over a basic right enjoyed by all Americans."

Posted by Robert J. Ambrogi on August 4, 2006 at 12:59 PM | Permalink

Blawgging at Big Law Firms
Veteran blogger Denise Howell's recent disclosure that she had been fired from her law firm sent shockwaves through the blogosphere. Like many other commentators, I questioned what this said about the role of bloggers in larger law firms. Now, we get to hear Howell's thoughts on that question along with those of two other prominent legal bloggers who have left larger firms, Howard Bashman of How Appealing and Ernest Svenson of Ernie the Attorney.

Howell, Bashman and Svenson are our guests this week on the legal-affairs podcast Coast to Coast. We discuss, among other questions, why there aren't more legal bloggers at larger law firms, whether larger firms see value in blogging and whether bloggers by their nature tend not to fit with larger firms. You can listen to the program:

Follow future programs by subscribing to the show's RSS feed or through iTunes.

Posted by Robert J. Ambrogi on August 4, 2006 at 12:57 PM | Permalink

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