Avast! ye law-lubbing swab!
Passed the Bar-nacle Exam, have ye?
Familiarized yerself wi' Davey Jones' Res Ipsa Loquitur, ye say?
Sailed the Chapter Seven Bankrupt Seas, even?
Schooled y'are in yer directions, an' knows the diff'rence between yer Tort and yer Starbucks?
Ye've got yer compass, and ye habeas yer corpus, an' ye carry yer non compos mentis in a waterproof Shelley's case, ye tell me?
And are ye prepared to sign the ship's Articles an' sail wi' the likes of us . . . in Perpetuity? Well, ye can't: thar's a Rule against it, ain't there? [Har har]
But tell me true now: It be Blawg Review ye've really come seekin', eh? Thought as much.
Well, yer appeal's been heard and ye've come to the proper place. And properly warned ye be, sez I.
But here ye'll find no more o' yer namby-pamby "Blawg Review," savvy?
No, matey, that be fer the lace and waistcoat gentry, an' the lords o' the Admiralty an' such-like luckless landlocked lumpers, wi' their clerks an' their cubicles an' their quills an' their copiers.
No, me hearty: for the likes o' us -- bold 'n' dangerous sorts that we be, don'cha know -- hencefor'rd this be . . .
But enough of these Saturday matinée accents.
This marks the third year that it has been my pleasure to host Blawg Review at Decs&Excs, and I welcome new and returning readers aboard my humble vessel as we set a random course through the inlets and archipelagos of recent posts relating to the law or originating with lawyers.
And now, let us be about the piratical business at hand -- or "at hook", as the case may be.
Our theme and the breadth of coverage for which Blawg Review stands compel us to begin with a topic otherwise rarely seen on this weblog: criminal law. We have no posts to link actually involving pirates, in the traditional non-intellectual property sense, but we can present a selection of items dealing with more shorebound offenses.
The major development of the week was the U.S. Supreme Court's decision in Medellin v. Texas, which has been portrayed as a significant rebuff to the Bush administration and the administration's strange bedfellow, the International Court of Justice. Ken Lammers' CrimLaw post provides one of the most compact summaries of the decision that I have seen:
The International Court of Justice can demand new trials for foreign citizens in the US who weren't told they could contact their embassy or consulate. President Bush can order that States will comply with the ICJ.
However, the States don't have to pay any attention to either of them. The part of the Vienna Convention which the ICJ and President tried to enforce is not self enforcing. In other words, when the treaty was approved by the Senate and signed by the President it did not state that it would become law within the signatory countries. Therefore, in order for the treaty to have force of law within the U.S. the Congress had to pass a law enforcing it.
Posts on the case number in the hundreds. Here is a random selection:
- A large and growing collection of scholarly commentary is accumulating at Opinio Juris.
Kent Scheidegger of Crime and Consequences writes, "Despite all the wailing and gnashing of teeth . . ., the holding is not all that remarkable."
Howard Bashman's How Appealing also provided a lengthy compilation of reactions.
Volokh Conspiracy member Ilya Somin was another who offered Reflections on Medellin -- "yet another nail in the coffin of the Bush Administration's claims that the executive has virtually unlimited power over foreign affairs" -- concluding that the Court is probably correct to have ruled in favor of the State of Texas, but that Texas still behaved rather badly in the whole affair.
Other criminal posts of note:
On the South Carolina Appellate Law Blog, Bill Watkins is concerned that the Supreme Court "has made trial practice for the ordinary lawyer much more difficult" by restricting trial judges' discretion in ruling on the race-neutrality of challenges to potential jurors.
And from the Innocence Project blog, a central question: "How many innocent behind bars? Nobody knows."
Now, favorable winds drive us on to the sort of insurance, tort and liability issues that most commonly concern this site.
Wind and water are constant concerns of the buccaneer -- and of insurance companies, as Ted Frank pointed out at Point of Law.com: "Are Insurance Companies Getting Hosed in the Wind vs. Water Controversy?".
The Drug and Device Law blog reports a troubling collision of product liability and employment law-- Big Pharma vs. Big Labor? -- in which it is apparently not a firing offense to manipulate drug testing results.
Adam Liptak's NY Times piece on foreign countries' view of the American fondness for punitive damages -- in a nutshell, it adds to the impression that we are a scary and unstable nation -- drew links and comment from many blawgs, including Dan Hull at What About Clients?, Erik Turkewitz on his New York Personal Injury Law Blog, and Dan Markel of the collective PrawfsBlawg.
Extra points for synergy: Carolyn Elefant manages to combine the Medellin and punitive damage threads in a single post at Legal Blog Watch as examples of Globalization of Law Practice, In Ways We Don't Expect.
Curt Cutting of the exemplary California Punitive Damages blog posts a link to Video Clips from Hearings on a Bill to Cap Punitive Damages, for one simple reason:
Yes, this is somewhat old news, but hey, it isn't often that we can link to a video about punitive damages.
Earlier in the week and also on the CalPuniBlog, which is covering all the bases on its topic of choice, Lisa Perrochet reported on a potential punitive damage award against "celebrity" Kid Rock -- who in some ways resembles a pirate, I suppose. Some lawyers will post anything to increase their blog traffic.
Cal Biz Lit's Bruce Nye yearns for the Bad Old (Pre-Prop 64) Days. Well, not really. Click through to read the story of a most terrible misrepresentation, which the plaintiff never actually heard, which did him no harm, and which he nonetheless chose to use as the basis for a "deceptive practices" claim anyway. This was not a successful gambit on his part. Bruce's post includes bonus mambo content, should you care for that sort of thing.
The Constitution is the unquestioned law of the land and the Captain is the unquestioned Authority on his ship, and for advocates of the "unitary executive" theory the President of the United States ("the Decider") holds comparable Constitutional authority to command, well, just about everything. So why is it, asks Marty Lederman at Balkinization, that when it comes to the awesome powers of the Federal Reserve even the present administration is suddenly awash with "Fair-Weather Unitarians?"
While we are on the trail of "fixing" the investment and capital markets, Professor Bainbridge adopted a cool-eyed and skeptical view of Senator Obama's big financial regulation speech.
Senator Obama has been taking some heat recently for associating with his controversial pastor of choice, but Presidential candidates have overcome far worse companions in the past. Below is an eyewitness portrait of future President Andrew Jackson (at right) consorting most amiably with Jean Lafitte (left), the notorious Pirate of the Gulf:
In other Constitutional posts we return to Howard Bashman, who noted yet again that "free speech" is still an evolving concept and that, at least in the State of Vermont, the right of privacy is in the air.
Pirates are not, as a rule, the most reasonable of men. Victoria Pynchon's Settle It Now Negotiation Blog poses a serious -- sometimes deadly serious -- question of related interest: How Do You Negotiate with a Sociopath? The simple answer is "don't," but there is much more to her post. The post includes bonus Sopranos content, should you care for that sort of thing.
Speaking of settlement, Scott Greenfield's Simple Justice advised that Settlement Demands Have Their Risks -- specifically the risk of a conviction for misdemeanor extortion, as happened to an overzealous young lawyer in New Hampshire. Scott's follow-up, with reflections on the non-lawyer public's frequentand vocal distaste for we legal professionals, is here.
If only from watching too much television, we are all familiar with the institution of the "teaching hospital," an institution devoted as much to the hands-on education of upcoming physicians as it is to healing the sick. At Concurring Opinions, Deven Desai proposes a thought experiment and asks: "Why Not A Teaching Law Firm?"
Pirates are wary of authority, and solo and small-firm lawyers (such as your host) often carry an innate suspicion of or distaste for BigLaw institutions. But even those unfortunate enough to have to man the oars of a large law firm can benefit from blogging, as Kevin O'Keefe [Real Lawyers Have Blogs] reports in his latest survey of the State of the AmLaw 200 blogosphere.
At Law21, Jordan Furlong suspects some large firms of manipulation of "Best Employers to Work For" lists as they seek an edge in
misleading to their doom hiring the most promising young lawyers.
And there we have it: the piratical Blawg Review #153. But you know and I know that it is a truth universally acknowledged that No Pirate Story Ends With Just One Episode! So there must be more, must there not? And indeed there will be, albeit without the pirates, because tomorrow is April 1, which can only mean the appearance of a differently-themed Bonus Edition of Blawg Review at my other bloggy establishment, the freely associating and culture-oriented a fool in the forest.
[UPDATE (040108): Here is a link to the April Fool's Blawg Review Appendix 2008.]
Until tomorrow, here's wishing you fair winds, safe harbors and ample booty. It has been a pleasure doing justice with you.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
Illustrations from divers public domain works (i.e., not themselves pirated) via Project Gutenberg, in particular: