Sunset and evening star,
And one clear call for me!
And may there be no moaning of the bar,
When I put out to sea,
* * *
Twilight and evening bell,
And after that the dark!
And may there be no sadness of farewell,
When I embark....
~~~
He was an International Man of Mystery.
I speak, of course, of the man variously known as "Ed.", "Ed Post", and "the Anonymous Editor of Blawg Review." And I speak of him because he and the online institution that he created and nurtured are gone. This piece is my contribution to the collective Final Edition of Blawg Review, instigated and encouraged by Mark Bennett, gathering roughly a dozen former Blawg Review hosts in a round-robin tribute to Ed and his creation. Each post links to the next, and links to all are collected in an introductory/summary post by Colin Samuels at the main Blawg Review page.
Some/many/most [?] of the participants will be compiling current editions of Blawg Review, linking to worthy current posts from the legal blogosphere. Others, as I am about to do, will simply be writing what comes to mind on the occasion of the Editor's passing. We are each writing independently, so if you have arrived here from one of the earlier posts in the series there is every reason to think that at least some of what I say will be repetitious of others, but if a thing was worth saying once it is likely worth repeating.
Unlike several of the other members of today's circle, I never met or spoke with Ed personally. I do not know his true name—I know only one person who claims to possess that information and he has kept it to himself—and I have only hearsay as a basis for believing that Ed was a Canadian one-time lawyer, no longer in active practice. Among the memorials posted to Ed on the day his death was announced, I particularly recommend that of his fellow Canadian, Antonin Pribetic, at The Trial Warrior Blog.
I first heard from Ed in early 2006, by which time Blawg Review had been up and running for nearly a year. In that time, it had succeeded in capturing a regular readership as it wended its peripatetic course from one legal blog to another week by week. I was among those readers, and in that way discovered quite a number of worthy and reliably interesting writers within the online legal community. As I wrote on Twitter the other day, after learning of Ed's death:
There was, once, a more golden age of blawging, and Blawg Review was in a way its Camelot. @blawgreview
I cannot recall who put Ed on to me, although I suspect it was David Giacalone of the now-defunct EthicalEsq weblog. David, as some may recall, was cantankerous in his dislike of the very word "blog," preferring "weblog" or "web journal." When I launched the first of my two blogs, a fool in the forest, in the summer of 2003, I referred to it as a "web journal" under David's influence. This blog, Declarations and Exclusions, followed within a month of the fool blog, and received some mentions in Blawg Review editions during 2005.
When Ed first approached me, all via email, he persuaded me without much difficulty to agree to take a Monday in August, 2006, to host Blawg Review. Then, in mid-March, he lost the host who had agreed to take the first edition of April, and contacted me again to ask me to take that spot on short notice. As enticement, Ed had come up with a clever "hook": knowing that I maintained two blogs and knowing that one of them specifically referenced fools, Ed proposed that I host the usual edition of Monday, April 3, 2006, here at Dec&Excs and that I spring a SURPRISE! APRIL FOOL! edition on the fool blog two days earlier. I fell for it, and a tradition was born.
It was my pleasure and privilege to host Blawg Review on six different occasions—2006 through 2012, with a gap in 2010 for reasons I no longer recall—compiling two separate editions each time. Ed and his tireless "sherpas" were invariably helpful in locating particularly deserving posts for inclusion, freeing me to wax creative or poetical in my choice of themes. During those years, I would also occasionally put up posts for the purpose of pointing my scant inventory of readers toward one particularly good Blawg Review edition or another. In one of those posts, I included the injunction
Blawg Review. It's not just a blog carnival; it's the law!
and was more than somewhat pleased and proud when Ed adopted it as a tagline atop the Blawg Review main page, where it still stands today.
It is not, I think, mere nostalgia to assert that the first few years of Blawg Review coincided with the freshest flowering, or the high water mark if that's a preferable metaphor, of the legal blogosphere. There was a truly remarkable array of high-quality blawgs ranging across a dizzying spectrum of specialties. Just in the insurance/defense field covered by Dec&Excs, I kept track of nearly a dozen others, each with a lawyer-author writing with a personal voice and a sincere wish to leave the reader better informed at the end of a post than at the beginning. Then came something of a dying off: while the gross number of "blawgs" in the world continued to grow, the number of original recognizable voices went into decline. More and more, the "blawg" seemed to become just another box to be checked off on a law firm marketing plan, an additional stream of "content," often as not not even written by the lawyer whose name was attached to the post. A large number of the blawgs that I followed slowed down or disappeared altogether. This blog slowed significantly, as my personal blogging interest shifted more to the cultural/musical material I covered at the fool blog.
In January, 2011, I wrote wistfully about the decline of the insurance blawgosphere in particular. In that context, discussing the blogosphere's "institutional memory" (and linking a still-good piece of that title by Scott Greenfield) I noted that Blawg Review "continues on its peripatetic way, in some sense a living embodiment of The Blawgs' institutional memory." But at that point, even Blawg Review had begun to show signs of strain: hosts grew harder to come by, Ed was obliged to write more frequently himself and to draw from a more shallow pool of material worth bringing to the attention of the discerning, intelligent reader. In August, 2011, Blawg Review #314 appeared in the Blawg Whisperer column on the ABA Journal's site—some may see irony in that—and Blawg Review fell silent for many months. As in a bad horror movie, however, it was a fake ending, the true conclusion yet to come.
In March of 2012, I received a message from Ed: he was going to attempt to revive Blawg Review, he had several experienced former hosts committed to the early going, would I assist by relaunching with the traditional April 1 double-team on my blogs? I agreed with no more than a scosh of hesitation. [The observant may observe that Blawg Review #315 was the last post of any kind on this blog until today.] Alas, the momentum could not be rebuilt: only nine more editions appeared and, for practical purposes, Blawg Review ended forever in July, 2012. This last commemorative edition, numbered collectively as #325, allows flights of bloggers to sing it, and Ed, to their rest.
Even after Blawg Review's second ending, one would occasionally hear from Ed. He maintained a presence on Twitter, in particular. It was that Twitter account that Ed's son used to announce his father's death following a battle—to which Ed himself had never alluded—with esophageal cancer.
On the 1st of October, Ed sent me a Twitter direct message. It was a link, without comment, to a line spoken by Touchstone, the one and only genuine original "fool in the forest," in As You Like It:
“The fool doth think he is wise, but the wise man knows himself to be a fool.”
And then, within a few weeks, he was gone.
I do not know who Ed was, and I do not know much about how Ed lived. Based on what I do know, I have to believe that he did a great deal of good on his passage through this material world and that he was likely both admired and loved in many quarters. I know for certain that in shepherding Blawg Review over his last eight years Ed provided a great, if evanescent, service to the legal profession and the larger online world.
Hail, and farewell, Ed, from a fool you suffered beyond his deserving. The carnival is over, but the memory lingers on.
~~~
And now, gentle reader, let me usher you to our next Gallery, in which the continuing tribute to the pseudonymous Ed is hosted by the similarly pseudonymous Gideon at a public defender.
Now, as you enter, look to the left where the sharp-eyed among you will be able to perceive something most remarkable.....
~~~
Citations
This post is meant to be about Ed, and only about me insofar as I have known and had contact with him, or followed his influence in the blogosphere. Because the production of my twelve Blawg Review posts was the principal point of those contacts, I somewhat self-servingly list them here:
Welcome to Blawg Review #315, the initial Monday edition of the resurgent Blawg Review, the weekly blog carnival for everyone interested in the law.
Launched originally in April 2005, and overseen by the still-anonymous Editor, Blawg Review ranged about across the legal blogging landscape, appearing each Monday in a new and different exotic locale for the next six years before seemingly going silent following its 314th edition this past August.
It has been my privilege to host Blawg Review here at Decs&Excs on five prior occasions, beginning with Blawg Review #51. Since April 1, 2006, I have also hosted a series of April Fools' extra editions, in the same week as the Decs&Excs editions, on my personal/cultural blog, a fool in the forest. Yesterday, as an amuse bouche in preparation for today's edition, I posted yet another, the Blawg Review #315 April Fools' Prequel.
While the original installments of Blawg Review were simple collections of links to the prior week's best or most interesting or most curious legal blogging, it early on became common, albeit never mandatory, for each host to adopt a Theme for his or her presentation. In 2011 and again this week, I constructed the April Fools' edition around a reworking of lyrics from Gilbert & Sullivan. The creation of the thing required no little energy expenditure, so as I turned my attention to crafting this post, I found my thematic inspiration swiftly ebbing.
"Whatever shall I do?" said I to myself. "I have a good quantity of top grade links to share, but no proper idea of how to present them most entertainingly. Perhaps I should just hark back to the distant origins of Blawg Review and just list them out with a remark or two? A sort of 'plain vanilla' approach, perhaps?"
And then, as if a lightbulb had incandesced in an environmentally friendly manner above my head, it came to me....
BLAWG REVIEW #315 - THE PLAIN VANILLA EDITION
The use of the seed pods of the orchid Vanilla planifolia as a flavoring can be traced to pre-Columbian Mexico, where it developed among the Totonac people in the region that is now Veracruz. The Totonac were conquered by the Aztec, who promptly developed a taste for vanilla themselves and who had large quantities of the stuff transported to their capitol at Tenochtitlan as tribute from the subjugated Totonac. The Aztec, in their turn, fell to the invading Spanish and the European fondness for vanilla was born, eventually spreading throughout the world.
Legendary versions of vanilla's origins come to us from the Totonac people, and exist in both kissy-cuddly and blood-soaked versions. Chacun à son goût, as the Totonac used to say, albeit they said it in Totonac. The tale is commemorated by a statue in Papantla, Veracruz:
It's a nice legend, as they say, and rather more romantic than simply attributing vanilla's attractive qualities to millions of years of fortunate natural selection.
Now, you may be asking yourself what tasty vanilla might have to do with the law. To which question, my answer is in two parts.
First, when one is going about theming a Blawg Review, it is never a requirement that the theme actually relate to the subject at hand.
Second, the contemporary practice of law in the United States is conducted largely in non-traditional environs, often with the use of sophisticated and highly mobile technologies. No longer tethered to a desk, a land line, a fax machine, or the material world, the contemporary lawyer is freed to commune with the delightful by products of V. planifolia whilst still practicing law.
And on that refreshing note, how about some links?
Criminal defense blogs have for some time been producing much of the best in legal blogging. A few choice examples:
Mirriam Seddiq meditated on "Innocence" and the eternal question whether its presence or absence does or should make any difference to a criminal defender.
The U.S. Supreme Court recently determined, with much snarling in dissent by Justice Scalia, that the right to effective assistance of counsel must apply to certain aspects of the plea bargaining process. Among the CrimBloggers weighing in on that decision were Rick Horowitz ("Such a Deal!"); the pseudonymous Gideon of a public defender ("To Plead or Not to Plead: a critical question"); and Scott Greenfield ("Please Plea(se) Me").
The dominant criminal law story in the public eye this past week was the continuing investigation in to the investigation in to the shooting of Trayvon Martin in Sanford, Florida. No surprise, it generated plentiful commentary in the blawgosphere. A few examples:
Florida's own Brian Tannebaum points out that "Stand Your Ground" has consequences of many kinds extending far beyond this incident: "Unintended Consequences, Again"
And of course, no discussion of anything in this country is complete without looking into the Intellectual Property angle. Above the Law is happy to oblige: "Trayvon Trademark? An ATL Debate".
The U.S. Supreme Court heard argument over the course of three days on the constitutional legitimacy of the health care/insurance reform edifice erected by the Affordable Care Act. Insights in to the difficult and sophisticated legal issues tended to be drowned out by the political commentary, horserace -style handicapping, and a flood of arrant nonsense. As a palliative, a selection of some of the more nuanced analysis around the blawgosphere:
Edward Hartnett at Concurring Opinions considered Justice Anthony Kennedy as the particular target of the argument and briefing by anti-ACA advocate Paul Clement: "Paul Clement and Justice Kennedy"
[This space was almost occupied by links to a story that I have convinced myself was/is an April Fools' prank not of my making. If it proves to be real—which I suppose is possible in this ever-changing world in which we're living—you'll all know about it next week, and I will confess my doubts were misplaced.]
[Update 0725 PDT: My instincts have proven to be correct on this one. Hoaxing mastermind Eric Turkewitz explains all here.]
Expert witnesses, their credibilty, and attempts to end-run causations were under consideration by John J. Sullivan at the Drug and Device Law Blog: "Any Exposure ≠ Enough Exposure"
That law school favorite, the peppercorn as a unit of compensation, earns a mention from Brett Trout at BlawgIT: "Judge Rules Bloggers Do Not Have to Be Paid". A vanilla bean would be equally acceptable as a metaphor.
Wait a moment, one more: there is an ample repository of excellent links to be found here. But for that guy getting to them first, I would have included them above.
And now, a look in to the Future:
Blawg Review #316 is scheduled to be hosted by Jamison Koehler, supra, at the Koehler Law Blog. This week and every week, Blawg Review HQ has information about future hosts and how you can become a host, and instructions on how to get your own blawg posts considered in upcoming editions.
~~~
All illustrations via Wikimedia commons, used in the expectation that they are either in the public domain or otherwise licensed for this use.
As an April Fools' Day surprise Blawg Review #305 has launched, three days earlier than previously announced, on my personal/cultural blog, a fool in the forest.
Comic opera is involved. You have been admonished.
"A nuclear era, but I have no fear...." —The Clash, "London Calling"
"No one will have the endurance to collect on his insurance: Lloyd's of London will be loaded when they go." —Tom Lehrer, "We Will All Go Together When We Go"
Introduction
Six years ago today, on March 28, 2005, a major earthquake registering 8.7 on the Richter Scale occurred off the coast of Sumatra, in Indonesia. It came little more than three months following the horrific 9.1 quake and tsunami of December 24, 2003, and stood as the second strongest quake of the new century until it was surpassed by the Chilean earthquake of February, 2010 (8.8) and, of course, the 9.0 earthquake and ensuing tsunami that struck northeastern Japan on March 11 of this year. In the midst of the unimaginable devastation of the quake and tsunami, enormous attention has also been turned toward the damage to the Fukushima nuclear power plant, and the resulting releases of radioactive material.
It is that nuclear element that provides our theme today for the 304th edition of Blawg Review, because March 28 is a date of some significance in relation of Our Friend, the Atom, and to both the military and civilian uses of the power of nuclear fission.
On March 28, 1946, the U.S. Department of State made public the so-called Acheson-Lilienthal Report, officially titled A Report on the International Control of Atomic Energy. At the time, the United States was the world's sole nuclear power, although the Soviet Union had begun the work that would lead to its possession of atomic weapons by 1949. The Acheson-Lilienthal Report endorsed imposition of international controls over all sources of potential nuclear material, with distribution of such materials in controlled amounts to individual nations for use in developing peaceful uses of nuclear energy. It also proposed that the United States voluntarily give up its monopoly on nuclear weaponry, providing the Soviet Union with access to American knowledge on the subject in exchange for a mutual agreement to halt any further production of atomic munitions. The report's proposals ultimately failed in the United Nations Security Council, being deemed unsatisfactory to both U.S. and Soviet interests, and the Cold War nuclear arms race was on.
More to the point, thirty-three years to the day after publication of the Acheson-Lilienthal report, on March 28, 1979, a cooling system malfunctioned in the Unit 2 Reactor at the Three Mile Island nuclear power plant, located outside Harrisburg, Pennsylvania. While the reactor shut down automatically, it did not do so before a release of radioactive steam within the reactor core. Some of that radiation in turn made its way into the surrounding environment.
Here, an excerpt from the report of the incident on NBC's Nightly News for March 28, 1979. Note, in addition to the stylish hair and clothing styles of the day, the relative calm of all concerned. The full version of the report—which was available via Hulu.com last week but has since been withdrawn—discloses that NBC gave the story only five minutes—an eternity now, but not remarkable for a major story of the day in 1979—before moving on to a report on that day's argument in the U.S. Supreme Court in the affirmative action case of United Steelworkers of America v. Weber:
ABC's evening news report of March 28, 1979, is not available for embedding, but it can be viewed here; it includes a useful animation of what was understood to have occurred that day.
Nuclear and Related Risk: Who You Gonna Call?
I mention the calm demeanor of those reports because discussions of the ongoing nuclear incident in Japan has been anything but calm, at least in this country. Notwithstanding that Japan is some 5000 miles away, Californians have been treated to scary animations showing a "plume" of radiation—measured less than comfortingly in "arbitrary units"—headed for Los Angeles, triggering a run on kelp tablets. Fortunately, intrepid investigative journalists pursuers of truth are unfazed by the Molecular Menace. Exhibit "A," prosecutor turned CNN host Nancy Grace:
It is a simple fact: Radiation scares us, and not without reason. And yet, it is worth recalling that although the phrase "Three Mile Island" haunts the policy landscape as a threatening rhetorical spectre, the number of deaths attributable to the actual Three Mile Island radiation release is generally accepted to be . . . none at all. Long-term health impacts from Three Mile Island are generally (albeit not universally) agreed to have been negligible. Even the far more serious 1986 Chernobyl disaster —the 25th anniversary of which will arrive on April 26, 2011—was deemed responsible for fewer than 50 actual deaths by 2005, although its long-term consequences also include at least 4000 diagnosed cases of thyroid cancer (99% of them non-fatal, however, by 2005). Radiation is, in short, nasty stuff and not to be trifled with, but perhaps not nearly so threatening as we may bring ourselves to believe.
The relatively (surprisingly?) low number of actual deaths from radiation accidents and exposures drives this chart—subject of frenzied rounds of blogging and tweeting this past week—comparing the number of deaths per terawatt hour of power produced by various energy sources:
Image via Seth Godin's Blog; more colorful and detailed version here and underlying statistics and calculations here.
I offer this image not necessarily to endorse its findings, but instead to raise those old favorite problems: actual risk vs. perceived risk and the sometimes uncomfortable balance of frequency of loss vs. severity of loss. To oversimplify as least slightly, nuclear power accidents have been marked, over the past half-century, by relative infrequency, and their actual severity has been, while serious, not insurmountable. The worst case really has not happened. The "worst possible case," however, is still by definition a possible case, and it would have a severity that is, shall we say, seriously unpleasant to contemplate.
Liability for damage to persons and property arising from potential nuclear accidents is sufficiently serious or incalculable that the risk is uninsurable in the standard insurance markets. Indeed, virtually every policy of liability insurance will include an explicit exclusion of coverage for nuclear exposures. Many of the policy decisions relating to liability for nuclear damage have been made on a nation by nation basis. Some international agreements on responsibility for nuclear losses have been adopted, largely under the auspices of the International Atomic Energy Agency [PDF], but the United States is not a signatory to those agreements.
In general, as summarized by the IAEA, liability for nuclear accidents is imposed on a strict liability basis—i.e., liability exists regardless of the actual cause of the loss, whether by negligence, recklessness, willful misconduct, or pure accident—on the operator of the nuclear facility, and only on that operator. Others who do not themselves operate the nuclear plant are free from liability exposure, even if they were intimately involved in day to day activities and decisions. Thus, Fox Business could report that General Electric, on whose design the Fukushima plant is based and which "supplied technical assistance" at the plant, likely faces no direct liability as a result of recent events.
All systems of liability have built-in biases and values. Every legal system balances the interests of plaintiffs and defendants, of society and the individual, of justice and economics. On the latter measure, international nuclear liability regimes clearly favour economics over justice for the victims, who may not be fully compensated because of limitations on the scope and amount of liability. Recognising this value system won’t change the legal aftermath of the Fukushima I disaster, but is important that we bear it in mind as nuclear liability regimes continue to evolve. Because after all, there has to be a limit on how much we allow monetary calculations to trump our own humanity.
In the U.S., the Price-Anderson Act governs the insurance and financial responsibility requirements imposed on nuclear operators:
The Price-Anderson Act, which became law on September 2, 1957, was designed to ensure that adequate funds would be available to satisfy liability claims of members of the public for personal injury and property damage in the event of a nuclear accident involving a commercial nuclear power plant. The legislation helped encourage private investment in commercial nuclear power by placing a cap, or ceiling on the total amount of liability each holder of a nuclear power plant licensee faced in the event of an accident. Over the years, the "limit of liability" for a nuclear accident has increased the insurance pool to more than $12 billion.
Under existing policy, owners of nuclear power plants pay a premium each year for $375 million in private insurance for offsite liability coverage for each reactor unit. This primary, or first tier, insurance is supplemented by a second tier. In the event a nuclear accident causes damages in excess of $375 million, each licensee would be assessed a prorated share of the excess up to $111.9 million. With 104 reactors currently licensed to operate, this secondary tier of funds contains about $12.6 billion. If 15 percent of these funds are expended, prioritization of the remaining amount would be left to a federal district court. If the second tier is depleted, Congress is committed to determine whether additional disaster relief is required.
The insurance coverage, particularly for the so-called "second tier," comes from a single source, American Nuclear Insurers, a pool of major commercial insurers jointly underwriting the potential risk. In the event a nuclear incident ever exceeds the available Price-Anderson insurance coverage, the Great and Good American People, through the federal government, would likely step in.
In the wake of the recent earthquake and tsunami, the situation at the Fukushima nuclear facility remains in flux from day to day, with the ultimate losses directly attributable to it (as opposed to the larger geophysical disaster) still unknown.
Other Timely Nuclear, Earthquake and Insurance Blogging
The recent earthquake in Japan was about as serious a quake as can occur, but since it was more than 70 miles from Tokyo, the cat bonds will barely help the insurance companies that spend millions of dollars on them.
***
For now, investors seem to be doing a better job than insurers at determining criteria to make cat bonds lucrative, but that can change very quickly. Insurers may come to decide that they're paying too much for this protection, however. After all, if they had saved the premiums they paid in the past five years, they would be 64% of the way towards having enough money to cover the costs from a major disaster that cat bonds would provide.
The direct victims themselves may well have only limited insurance resources available to them. In the immediate aftermath of the earthquake, Tyler Cowenpointed to an article in the Globe and Mail that notes:
[V]ery few people in that region of Japan held earthquake insurance, and also because of strict loss limits imposed by the Japanese government. For instance, residential buildings and furniture can be covered, but very expensive jewelry and artwork cannot, and there are rules that ban people from taking out insurance once an earthquake warning has been issued.
Mr. McGillivray said the Japanese government protected domestic insurers by limiting foreign participation in the system and, to keep the risks manageable, limited the payouts.
Nuclear exposures, without regard to earthquakes, are not limited to the U.S. or Japan, but affect most of the world's developed nations. by way of example, The Argumentative Indianblog asks: Who would be liable for a Japan-like nuclear accident in India?
Diverse and Sundry Blawging
Now we come to the point at which it is traditional to cast aside the purported theme of a Blawg Review, and to shift to pointing out recent blawging that tickles the host's particular interests and fancies, or that has slipped in for any of a hundred other reasons. Let's take the plunge, shall we? In no particular order:
And speaking of devil may care attitudes: howzabout Mr. Greenfield's take on the less-than-experienced Indiana prosecutor who wishes criminal defendants would help the state save some money by giving those pesky jury trials a miss?
I can't speak to what went through the minds of the good people of Starke County, Indiana, when they decided to hand over to a kid whose entire legal experience was shorter than the shelf life of refrigerated blue cheese salad dressing the authority and discretion to put people in prison, but it seems that his assertion that defendants charged with felonies are less concerned with having a jury trial than saving the county some money.
To his credit, [prosecutor Nicholas] Bourff recognizes that the elimination of jury trials isn't entirely in his hands:
'The one major drawback there is that if a defendant wants a jury trial, he or she has that right. If the defendant agrees to a bench trial, then it would save thousands of dollars and it would shave off quite a bit of time as far as eliminating the need for jury selection. '
One might think that the major drawback is that the new prosecutor advocates the evisceration of a constitutional right for the benefit of the taxpayers, not to mention those criminal defense lawyers who really hate wasting all that time picking a jury before their clients get convicted.
And just think of the savings if we weren't such silly sticklers for the whole "presumption of innocence" thing!
Tip to future Blawg Review hosts: If pressed for time, you can still produce a pretty good (albeit short) Blawg Review edition by giving your readers just one bit of advice: go read Scott Greenfield. This idea did not come to me until well into the hosting process, so I was unable to save time by following hit here. You're welcome to it, though.
The At the Lectern blog specializes in following the actions and rulings of the California Supreme Court. This week, they pointed out the unexpected fact that the Supreme Court may well get through the entire month without issuing a single decision. The retirement of Justice Carlos Moreno is the principal cause.
Here's a tip: Holden Oliver, channeling his compatriot Dan Hull at What About Clients?, advises, ""Be excellent, not perfect."
On Maryland's Eastern Shore, chicken farming is a mainstay of the economy. The State of Maryland likes its chicken farmers, and wants to encourage the industry. So why, wonders Cato's Carter Wood at PointofLaw.com, is the Environmental Law Clinic of the State-supported University of Maryland trying so hard to shut the industry down?
Whatever it is we are doing in Libya, we are assured by the Administration that we are not at war. We are, it seems, engaged in kinetic military action (as opposed to military action in which one stands around motionless). By whatever name, Yale Law Professor Bruce Ackerman is of a mind that it's unconstitutional.
By any name and in any place, military action can bring out some of the best and much of the worst in human nature. Charon QC noted the revelation by Germany's Spiegel of photos documenting the bloody work of a rogue self-styled "kill team" in Afghanistan: "This… is why we need the Rule of Law."
Taking care of all those soldiers and veterans is expensive, to the point that Secretary of Defense Robert Gates has suggested that the spiraling Defense Department health care budget has itself become a national security concern. On his GovtFraudLawyer blog, Dan Hargrove wonders: "Is Fraud to Blame?"
The third rejection by the court of a proposed settlement in the ongoing class litigation involving Google Books has been the talk of the IP community. Writing at The Laboratorium, Prof. James Grimelman takes us, in extravagant detail, "Inside Judge Chin's Opinion."
Elsewhere in IP land: does anyone remember LimeWire, a peer-to-peer filesharing service popular among music-sharers in the days when Napster was still really Napster and everyone dreamed of the Web as a [free!] Universal Jukebox? You don't? The music industry does: they continue so sue LimeWire for infringement and this week informed the Court that damages should amount to $75 trillion. Overlawyered reports here on the judge's reaction. I.P. Blawg weighs in here.
Jonathan Turley marvels at the hyperbole of federal prosecutors seeking to declare the graven image of Rep. Ron Paul on a gold coin "Instruments of Domestic Terrorism."
"Libel tourism" is the practice of filing defamation actions in London courts to take advantage of the UK laws that are highly [some would say absurdly] favorable to plaintiffs. Efforts are now afoot to reform British defamation law to cut back on suits that have nothing else to do with the country. On his Trial Warrior Blog, Antonin Pribetic reports on "UK Libel Reform and the US SPEECH Act: A View from Canada."
Finally, to round out our theme, a musical public service message from songwriter Joseph Aronesty and son Andrew Aronesty: a song written in 1979, now updated and videofied to acknowledge ongoing events in Japan. The views expressed are those of the singer, and no endorsement or warranty, express or implied, is made or given by this blog (which has no particular quarrel with either solar or nuclear power in theory), Blawg Review, or any other person or institution. Void where prohibited. Prohibited where void.
~~~
Particular thanks to the Anonymous Editor of Blawg Review for his assistance in tracking down worthy links for inclusion in this edition.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
~~~
A Closing Blawg Bleg:
Who am I kidding? I am next week's Blawg Review host, at my personal/cultural blog, a fool in the forest. For reasons that will become clear in good time, I am particularly interested for the next edition in blog posts that examine, or that exemplify, Things That the Law, or Lawyers, Could Do Without. Your submissions and suggestions, early and often but mostly early[hint hint, nudge nudge], will be welcome and appreciated.
~~~
Photos [top to bottom]:
Civil Defense Shelter Sign, Memorial Park, Pasadena, California. Photo by the blogger.
Plane landing at Harrisburg, PA airport, with Three Mile Island cooling towers in the background, by Flickr user audreyjm529, used under Creative Commons license.
Three Mile Island (with duck crossing) by Flickr user avidd, used under Creative Commons license.
Three Mile Island souvenir table lamp, in National Atomic Museum, Albuquerque, NM, by Flickr user Marshall Astor - Food Pornographer, used under Creative Commons license.
Three Mile Island HDR by Flickr user L Hollis Photography, used under Creative Commons license.
The return, to these pages, of Blawg Review, the blog carnival for lawyers and everyone interested in the law.
Please join Decs&Excs on Monday, March 28, 2011, for Blawg Review #304. Be warned, however, that this edition will not be without Risk.
This will mark the fourth Blawg Review excursion in the past five years for this blog. In keeping with tradition, the edition following #304 is scheduled to appear the following week on my personal/cultural blog, a fool in the forest.
Decs&Excs welcomes submissions of the best, most intriguing, most noteworthy law-related blog posts of this week, to be considered for inclusion in BR #304. Submissions can be directed via email to [email protected], or through the Blawg Review submissions page. Detailed information on submission guidelines can be found here.
In the meantime, the current week's edition—Blawg Review #303—is being hosted at the Blawg Review main site, under the auspices of the Anonymous Editor of Blawg Review. Please direct your attention there while I continue to prepare for the revelation of edition #304 five days hence. Thank you, and good blawgs to you.
Welcome to Blawg Review #205, the Music of the Spheres edition.
The English composer Gustav Holst (1874-1934) was hugely prolific, but he is unquestionably best known for his orchestral suite, The Planets. Composed between 1914 and 1916, the work was popular from the start, much to the chagrin of Holst, who thought that it unfairly overshadowed other, more worthy compositions. Beginning in the 1960's, and particularly in the wake of the Space Age, the Apollo program to reach the moon, and the ultimate artistic affirmation of Space that is Stanley Kubrick's 2001:A Space Odyssey, Holst's Planets reached a new level of prominence among the popular classics, and it has never really gone away since. (Playing soon at a summer amphitheatrical symphonic program near you, I would almost guarantee, if I were a fellow inclined to give guarantees.)
The Planets is structured in seven movements, each themed to a mystical/astrological attribute attached by Holst to that movement's regnant planet. The Earth is omitted as is poor old Pluto, which had yet to be either discovered in or demoted from its place in the Solar System. For reasons of his own, Holst ordered the movements to move first toward the Sun -- beginning with Mars and proceeding to Venus and onward in to Mercury -- and then out and away to the edges of the System -- Jupiter, Saturn, Uranus and Neptune in their proper astral order.
Blawg Review #205 is structured in seven movements, themed and ordered to parallel Holst's. As above, so below. Each segment is accompanied by a MIDI version of the relevant movement, courtesy of the Planets page at aquarianage.org. Proper orchestral recordings of the suite are numberless as the stars, and any one of them will give a more fully satisfying experience of the work.
Now, set the controls for the heart of the Sun and beyond as we boldly go where no Blawg Review has gone before: in to the strange new worlds of this past week's finest legal weblog posts. Whooosh!
The planet Mars and the Roman god for which it is named have always been associated with war and, as the Great War launched in Europe, Holst opened The Planets with orchestral music's most readily recognized and frequently imitated depiction of heartless, mechanized conflict. If you know one part of The Planets, this is likely the one. And what the makers of Hollywood preview trailers would do without "Mars" is terrible to contemplate.
Law is war by other means, right? Battlefield metaphors have been the stock in trade of litigators for as long as there have been battlefields, metaphors, or litigators. As an example, Walter Olson on PointofLaw.com noted this headline: "High Profile Plaintiffs Attorneys Start to Beat War Drums Over AIG Bonuses".
Even settlement negotiations can partake of the regalia of war, as when Victoria Pynchon of the Settle It Now Negotiation Blog considers the pros and cons of Pursuing a Divide and Conquer Negotiation Strategy.
Venus, the goddess, is more often associated with Love than with Peace, but Holst opts to set her namesake planet as a more direct counterbalance to the warrior rhythms of Mars (or, if you prefer, to the martial rhythms of war). Serene, stately, and peaceful it is.
In the courtroom, jurors serve as peacemakers of sorts, given that their factual findings actually decide and resolve the issues before them. Why then, wonders Daniel Solove, do we treat jurors as second class citizens? Gideon, of the a public defenderblog ponders jury selection and reduces it all to a single question: "Who Is This Guy?"
Speaking of jurors: should we be at all surprised that Anne Reed's Deliberations has been determined to be the best legal blog in Wisconsin? I am at peace with that notion.
Judges deserve credit as peacemakers as well. Last week's Blawg Review #204 host, Above the Law, provides an unusual instance, in which the judge leaves the bench to defend a witness attacked by the defendant. They have the video of this highly Alternative method of dispute resolution.
With the wind at his back and wings on his heels, Mercury is messenger of the gods, picking up a little extra change on the side as a corporate spokesmodel. The smallest and fastest moving of the planets, Mercury is represented musically as a spirit of increasingly speedy communication. While Holst painted this musical portrait of Mercury at the start of the last century, it is just as fitting a theme for the hoppity-poppity-nonstoppity iFaceBerry TwitterKindling world of today.
Communications technology is essential to contemporary lawyering, but also a subject on which contemporary lawyers can easily find cause to overthink. Take, for example, the "gripping issue of notice-provision terminology" noted at AdamsDrafting: should you refer to it as a "fax" or "facsimile" or "telecopier"?
Blogging is itself a mode of communication, even if directed to an audience of one. On his Compliance Building blog, Doug Cornelius observes: "I use my blogs to put my thoughts and ideas into a searchable place. I am happy that anyone takes the time to read any of them, but I think I am the biggest consumer of my blog material."
Ireland is having its own wrangles with political speech, after an unidentified sly boots of an artist not only painted satirical, near-naked portraits of the Irish Taoiseach (that's Prime Minister to we backwards English-speakers) Brian Cowen, but managed somehow to smuggle them on to the walls of upstanding cultural bastions the like of the National Gallery of Ireland and the Royal Hibernian Academy. The political authorities have been decidedly heavy handed in their efforts to track down the painterly perpetrator, to the extent of exacting an apology from the national television network for having covered the story at all and dispatching the constabulary to a Dublin radio station to demand information on the cartooning culprit's identity and whereabouts. Naturally, the entire situation has been christened "Cowengate." All of which is by way of prelude to a recommendation of the thorough review of the state of play and the legal questions presented offered by Eion O'Dell at cearta.ie: Cowengate and Freedom of Expression.
Jovial Jupiter is as much about awe and nobility as about jollity. After Mars, Jupiter's is the best known segment of The Planets, its central theme trotted out for hymns and processionals and other occasions of serious seriousness. For our purposes, though, the stuffy bits can be ignored as we seek out law-related posts with an element of the Pleasures of This World.
Where might pleasure lie? In the sparkling translucency of a fine Pinot Noir, perhaps, or the burly bruised purple of a fruit-bomb Shiraz? Robert Parker, whose judgments on matters wine-related can single-handedly change the course of rivers (of wine) and determine fate of nations (of wine drinkers) was once, wouldn't you know it, a lawyer. Bitter Lawyer has an interview with the man himself, including the answer to the question "What should law students buy if they've got $12 to spend?" See: Robert Parker, Vintage Lawyer.
Of course, to take pleasure in a scintillant glass or frosty beverage one must first be able to purchase it, something not so easily done in many jurisdictions. Here is a most informative (and amusing) video on the byzantine bizarreries of the alcoholic beverage laws of one state, Virginia, via Radley Balko's blog, The Agitator:
Jollity: you laugh until you cry.
Music, the thematic backbone of this week's Blawg Review, may also give pleasure, being as it is reputed to be the food of love and soother of savagery. Whatever pleasures we listeners may be deriving, the prospects for the business of making money by getting people to pay for music is not particularly jolly. These are men of constant sorrow. The recently-launched Lawyer 4 Musicians blog focuses on the legal end of the business of music and this week turned to the major labels' latest attempt to rethink their revenue models: You Spin Me Right Round: Like a 360 Record Deal. [There's appropriate video accompaniment, likely to convince you that the current 80's nostalgia boom will never last, or shouldn't.]
Why Holst linked Saturn with old age is something of a mystery, as it is not a traditional association. The Planets' fifth movement depicts advancing age as a long, resigned but not depressive trudge to the destiny that awaits us all, which leads as well to the question: what sort of legal blog posts will fit nicely into this section?
Well . . . Nothing says "old age" like a birthday, as we were reminded over the weekend by the mysterious Editor of Blawg Review. Ed. apparently got Barenaked for the occasion. That he hints at this rather than sharing it more directly is an exercise of discretion for which we can all be grateful.
The elderly, and particularly the retirement savings of the elderly, were a particular target of convicted Ponzi schemer Bernard Madoff -- no spring chicken himself. On that note, let's spend a few moments contemplating corruption, which may or may not be connected to the advancing age of the allegedly Corrupt.
Madoff himself seems to have squandered the savings of . . . an equally dubious individual: Walter Olson of Overlawyered discovered that Eric Turkewitz reported that Madoff's victims include one Morris Eisen, a one-time notorious New York personal injury attorney whose work habits included the repeated and elaborate fabrication of evidence. Prior to taking his losses with Madoff, Eisen was disbarred and served a number of years in prison. He can offer Madoff tips on getting along behind bars, perhaps, if he is in the mood to share.
The world of Art is now alleged to have its own Madoff equivalent, in the person of formerly high flying gallery owner Lawrence Salander, now the target of some 100 counts of grand larceny, falsifying business records, scheming to defraud, and on and on. Donn Zaretsky's Art Law Blog is all over this story.
Giving generously to charity is a frequent privilege of the old and well off, and both givers and getters of charity are nervously eying the President's proposals to limit charitable tax deductions. Donn Zaretsky, again, is tracking the issue as it may affect donations of art: President Obama Stands By Proposed Charitable-Deduction Limits.
It is a canard whose age is measured in centuries: old men in power, aging judges for instance, are inherently suspect. As with most canards and over-generalizations, it is a statement that is overall untrue, but for which there are sufficient examples that its broader untruth is lost in the hurly-burly of vivid exceptions. As, for instance, when Austin criminal defense lawyer Jamie Spencer catches out some [aging? we'll assume it arguendo] judges whose decisions, it seems, Can Be Bought: Guilty Judges Say Thanks But No Thanks to Guidelines.
Some lawsuits live to a ripe or overripe old age as well. Dickens' Jarndyce and Jarndyce in Bleak House is the fictional example traditionally cited. Real life produces such antiquities as well, two of which from the Courts of California drew attention this week. Scott Godes' Corporate Insurance Blog (which I needs must add to the sidebar here at Decs&Excs) notes an excellent article by his colleague Steve Goldberg on the Stringfellow Acid Pits litigation, in which the coverage disputes threaten to outlast even the interminable cleanup of the site. And the California Civil Justice Blog updates the continuing saga of the so-called Kwikset litigation under California's infamously broad Unfair Competition Law, concluding there's Nothing Kwik About Kwikset.
Holst's Uranus enters the scene with a flash and a bang, then struts and frets through a series of rapid fire tricks and turns. As with Saturn and old age, the connection between Uranus and Magic meant something to Holst, but is less than clear to the rest of us. In any case, ol' Uranus puts on a whallopin' show before departing in as unsettling a fashion as he came.
The obvious place to turn for posts to include in this segment is the Law and Magic Blog, a blog that is all about . . . ? Anyone? Yes, you there in the back: "Could it be . . . Law and magic"? Yes. Yes, that's exactly right. Give yourself a cookie. And among the legally magical news on the Law and Magic Blog this week, readers could learn that a down economy is a good market for psychics and that the operative standard of care when at the controls of a plummeting jet is: "Don't Pray, Pilot the Plane."
Not magical, perhaps, but also up in a down economy: commercial mediation, according to Geoff Sharp of mediator blah. . . blah . . . .
What if by some miracle you could take a large personal injury liability, say for the death of a hundred innocents in a nightclub fire, and transform it [presto! change-o!] in to something more palatable, such as an expense covered by federal stimulus money. Watch in amazement as Carter Wood of PointofLaw.comreveals the trick, as performed by the State of Rhode Island.
Holst's "Neptune" is an amorphous wash of elegant sound, emulating the distant and unknowable qualities of that far off planet as the suite drifts ethereally to its conclusion. It is often said that Holst here invented the "fade out" as a method of concluding a piece. This movement calls for an offstage female chorus, which continues to sing wordlessly and more and more quietly after the instruments of the orchestra have dropped out, until the sound disappears altogether. Holst's instructions actually call for the chorus to be in another room, and for the door from the concert hall to that room to be closed to cap the long diminuendo to the silence of empty space. (The MIDI version above really does not do the effect justice; you should by all means track down the real thing to hear how well the trick works.)
In the realm of the mysterious, I can point to my own stock in trade: the construction and interpretation of the English language as used, sometimes oddly, in contracts of insurance. Stephen D. Rosenberg of the Boston ERISA and Insurance Law Blog has been thinking long and hard on this topic recently and this week offered his latest thoughts on Deconstructing the Language of Insurance Policies. Additional hope for the perplexed in this field comes from the news that Martin Grace and company at the RiskProf blog will be making their wished for return this week. (There has been a good deal of attrition and suspension in the insurance blogging ranks this past year, Decs&Excs included, so the recent return of David Rossmiller and the promised return of RiskProf are welcome developments.)
Looking for a topic more mysterious than insurance? How about federal preemption doctrine in drug and device product liability litigation? The mind boggles. Fortunately, new insights were provided this week by Jim Beck and Mark Herrmann at the Drug and Device Law blog, reviewing a recent address on the subject by former Yale Law dean, now Judge, Guido Calabresi: Calabresi on Preemption.
Intellectual property is not the sole property of intellectuals, but it can easily sow confusion among those who are not among its adepts. Jeff Pietsch of The IP Law Blog assists the confused in his continuing series of trademark basics, this week explaining the concept of trademark dilution. Like a good scotch, a good trademark should not be excessively diluted.
A final conundrum before we part: Why do large and seemingly successful law firms suddenly go *poof*? John Wallbillich of wiredGC takes on a recent example of the phenomenon when he considers Proximate Cause and Law Firm Dissolution.
Now, as Blawg Review #205 fadesinto distanceand silenceand the infinite mystery of space . . ., Decs&Excs thanks you for reading and leaves you with this final observation, which is an eternal verity and no mystery at all:
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
~~~
Photo Credits:
"Orrery Closeup," by Flickr user Binks , showing the orrery at the Long Now Foundation, San Francisco;
The continuing and profound silence in this space will again be broken no later than next Monday, March 30, as it will be my pleasure for the fourth year running to host a new edition of Blawg Review, the weekly blog carnival for everyone interested in the law. As in prior years, and notwithstanding the protests of wiser men than I, there will be A Theme to the presentation. Please rejoin me here next Monday to see how it all plays out, and to survey another week's worth of the finest law-related blog posts from hither, thither and yon.
Meanwhile, a brazen and beefy Blawg Review #204 is to be had this week courtesy of the legal tabloidologists at Above the Law. Get thee hence post haste, then hasten back here post hence.
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Photo: "Watch This Space" by flickr user hockadilly, used under Creative Commons license.
Charon, the ferryman who transported souls across the River Styx to the realms of the dead in the myths of the Greeks, was appropriated by Dante to serve that same purpose in a more Catholic and more punitive version of the afterlife in the Inferno. Charon, in consequence, knows a little something about Sin. It is thus a right and proper thing that Blawg Review # 193 hosted by Charon QC has been built, and very well built, upon the theme of the Seven Deadly Sins.
It is a sterling effort. If weblogs had pages, it would be a riveting page-turner. It is so good, in fact, that notwithstanding my own three-year tenure hosting "April Fool's" editions of Blawg Review at that other weblog, I feel not the least bit huffy or territorial over Charon's appropriation -- an entirely appropriate appropriation on the occasion of Twelfth Night -- of the Feast of Fools in his lengthy and jocular introductory segment. Charon is to be commended for setting a Blawg Review standard to which future hosts can only dream of hoping to wish to aspire. Bravo! Now go read it.
Hellooooo. Is anyone there? Is anyone here? Anything happen while I was out?
If nothing else, Blawg Review has continued to happen week after week and, it being what we in the trade often refer to as the End of Another Year, the Anonymous Editor of Blawg Review has taken the occasion of Blawg Review #192 to solicit the votes of Blawg Review hosts past, present, and future, for the 2008 Blawg Review of the Year. Having hosted Blawg Review editions here and elsewhere in each of the past three years, and having lined up to do so yet again in a very few months, I now rise to cast my ballot.
Ed.'s invitational post provides a convenient gateway to each of this year's 51 editions, and I have been duly diligent in visiting or revisiting them all prior to making my selection. Especially impressive this year? The array of International sites -- by which we UnitedStatesers ("Americans" isn't strictly the right term, given that there are at least two continents with "America" in their names and that we share the Northern one with another nation state or two) mean blawgs not originating in the United States of [Northern] America -- hosting Blawg Review, and the equally grand array of Recidivist Blawg Review Hosts who, undaunted by their direct knowledge and personal experience of the daunting task it is to be a Blawg Review Host even once, have returned to the hosting fray with more vigor than ever.
All have won, and all should have prizes, and readers, but I have imposed on myself an altogether arbitrary limit of five nominees. Those nominees are, in chronological order:
cearta.ie >> Blawg Review #164 -- To stand as representative for all of the eminent International law sites that hosted Blawg Review this year, I nominate this Dublin-based Bloomsday edition. A congenial legal stroll with Leo and Steve and the merry denizens of Nighttown. Yes I say yes.
E-Commerce Law: Blawg Review #167 -- In a post-US Independence Day edition, Jonathan Frieden waved the flag a bit in presenting the "50 Stars of the Blawgosphere," a loose-limbed ramble through These 50 United States, in the order of their admission to the Union, with a legal weblog associated, at least loosely, with each.
Blawg Review #171 : The IP ADR Blog -- Eminent Victorians? It's been done. Eminent Viriginians? Also done. Eminent Virgins?!? For that, we must thank whatever possessed Victoria Pynchon to build her latest Blawg Review 'pon that theme. Pure as the driven snow. (Have you ever seen snow that's been driven on?)
The UCL Practitioner: Blawg Review #183 -- There's no place like home, so my final nominee is this comprehensive catalog of clever Californians. I'm certain Decs&Excs would have been included here, had it only been awake and alive at the time. That'll learn me.
Decs&Excs will be hosting Blawg Review for a fourth time at the end of March, on a theme no doubt to be selected in a hasty frenzy at the last possible moment. In the meantime, it is high time that I should end my unbloggerlike hibernation and return to at least quasi-regular posting on this site. Any number of insurance-related weblogs seem to have grown unusually quiet these past months, their disappearances as mysterious as those of the dinosaurs or Judge Crater. Enough. Let the resurgence begin here!
Here's wishing each and all a spirited, comfortable and prosperous 2009.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues -- or perhaps to host one yourself. Blawg on.
~~~ Illustration: The Olympic Gateway at the Los Angeles Memorial Coliseum, created for the 1984 Olympic games by the lateRobert Graham. Photograph by Flickr! user grifray, used under Creative Commons License.
" 
, Holst's Planets reached a new level of prominence among the popular classics, and it has never really gone away since. (Playing soon at a summer amphitheatrical symphonic program near you, I would almost guarantee, if I were a fellow inclined to give guarantees.)
, and any one of them will give a more fully satisfying experience of the work.
is the fictional example traditionally cited. Real life produces such antiquities as well, two of which from the Courts of California drew attention this week. Scott Godes' 