Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

10 February 2005

10:45 [GMT-6]

Don' T'row Me in Dat Dere Courtroom, Br'er Fox!

Three stories of varying provenance across the news today make me feel like Br'er Rabbit (I'm afraid Br'er Shark just doesn't have the same ring, does it?). First, there's news that the Senate has turned back (misguided) Democratic efforts to soften the class-action "reform" act. I'll freely admit to being in a minority among attorneys who customarily find themselves on the left side of the v: Absent compelling circumstances, I'd rather be in federal court anyway. I suspect that the legislation will have some unintended consequences that end up favoring the plaintiffs—if not always their "usual" counsel.

By being in federal court, we won't have constitutional questions concerning the legitimacy of nationwide class action judgments being decided by state courts ill-equipped to deal with the constitutional questions. It's not that state-court judges are inherently "dumb" or anything like that; it's that the default rule in state courts on conflict-of-laws is "find a way to apply our law." Then, too, there's the whole legitimacy issue and clearer standards for class certification.
Certain plaintiffs' class counsel whom I hold in minimal high regard will find it more difficult to get named lead counsel in federal actions, primarily because their antics have pissed off too many federal judges. You know who you are. And yes, I did write that brief that implicitly accused you of bad faith and selling your clients down the river. Pffft!
By consolidating proceedings nationally, and under the far clearer standards of federal discovery and evidence, it's going to be more difficult for certain kinds of marginally ethical defense tactics to paperwork the plaintiffs to death.
On a total-cost-of-obtaining-judgments basis, it's actually cheaper to be in federal court. Typically, there's only one level of appeal; the opinions one gets from the trial court are clearer and cleaner; and these things ordinarily should be done by ~~specialists~~ attorneys who concentrate in class litigation (on both sides) anyway, reducing the ability of "local counsel" to hijack matters for their own egos, gratification, fees, and state-bar monopolistic xenophobia.

I'm returning to my days as a serious chess player: "Are you sure you want to make that move?"

Speaking of bad moves, it looks like David Boies has again had his head handed to him, this time in the SCO v. IBM trial over Linux. Judge Kimball denied IBM's motions for partial summary judgment. His denial, however, was made in the process of bending over backwards to ensure that his final ruling will be unassailable on appeal.

Viewed against the backdrop of SCO's plethora of public statements concerning IBM's and others' infringement of SCO's purported copyrights to the UNIX software, it is astonishing that SCO has not offered any competent evidence to create a disputed fact regarding whether IBM has infringed SCO's alleged copyrights through IBM's Linux activities. Further, SCO, in its briefing, chose to cavalierly ignore IBM's claims that SCO could not create a disputed fact regarding whether it even owned the relevant copyrights.

Slip op. at 9 (footnote omitted). I don't know about you, but I'd feel awfully uneasy if this kind of language appeared in a decision denying summary judgment against my client. Perhaps, though, this merely reflects Mr Boies's overinflated reputation and inability to hold onto what he does get on appeal (e.g., Microsoft). I suspect that this has more to do with the kind of factual contexts he gets involved in than in any actual shortcomings; there's little question, though, that his reputation appears to be overstated.

Being thrown into court is bad enough, eh? How about being thrown into the Senate? Bruce Ackerman has penned a thoughtful piece in the London Review of Books on the Supreme Court nomination fight(s) to come. I don't agree with everything in the article, particularly the rhetorical decision to so seriously underplay Souter's history as a "stealth candidate." Nonetheless, I think it does a good job of laying forth the implications of the ideological struggle for the next Justice(s)—even if one doesn't agree with Ackerman's prescription of the "correct" result.

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

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Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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