Blawg Review #31

Welcome to Blawg Review #31, the weekly guide to the best posts in the legal blog world. This week, Blawg Review will fall in love, geek out, go online, get some useful advice and maybe even engage in some light treason.

Previously on Blawg Review

Blawg Review went Underground
Blawg Review fought the man!
Blawg Review sold out!
…and now, stay tuned for this week's exciting all-new episode of Blawg Review!

Act I: The Alito Nomination

The big story around the blawgs this week was obviously the nomination of Judge Samuel Alito to replace Sandra Day O'Connor on the Supreme Court. For an example of how useful legal blogs can be, look no further than these posts.

First Amendment, Copyright and Internet Law

    Laura Quilter looks at Alito's record on copyright, the First Amendment and Cyberlaw, finding that "while Alito appears to be careful and thoughtful about copyright, the picture that emerges from looking broadly at his consumer rights and interests decisions is not a good one. Alito appears to be quite concerned with enforcing the letter of contracts and working through the nuances of textual interpretation."

    Ronald K.L. Collins and David L. Hudson Jr., from the First Amendment Center, look at Alito's record on the First Amendment (surprise, surprise) and find Judge Alito fairly strong on free expression.They find Alito "(1) quite protective of several categories of expression, including religious and commercial expression; (2) far less protective of First Amendment claims raised by prisoners; (3) guardedly protective of First Amendment rights in defamation cases, and (4) generally concerned about prior restraints on expression."

    At New World Man, Matt Barr looks at Alito's First Amendment jurisprudence in two posts: one on free exercise/establishment of religion and the other on free speech "These opinions were written by someone not appearing to be disposed to defer to government when it encroaches on the free speech rights of its constituents."

    William Patry looked at Alito's decisions in Southco, Inc. v. Kanebridge Corp.Judge Alito and Copyright, calling them "thoughtful looks at basic questions of originality."

Business Law

    At Concurring Opinions, Dave Hoffman wonders if Alito would be a Business Friendly Justice?and delves further into Judge Alito's record on Securities Law.

    Larry E. Ribstein of Ideoblog asks Is Alito Pro-Business? Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

    ACS Blog offers a quick look into Alito on Business

Criminal Law and Criminal Procedure

International Law

Other Important Issues and Miscellany

The Alito hearings are set to begin on Jan. 9

Act II: The Judiciary and Procedure

Meanwhile, in other courts…

SCOTUSblog's Lyle Denniston reports about Chief Justice Roberts' service on the D.C. Circuit: Roberts: a judge on two courts. Michael Froomkin and Steve Vladeck discuss Circuit Justice Roberts's Eleven-and-a-Half-Day-Gap: "Did Chief Justice Roberts accidentally create grounds for reopening (and even rearguing) Banner v. United States?"

Chris Cohen reports the interesting case of a Mormon Utah Judge Married to 3 Sisters: "A 14 month investigation of Judge Walter K. Steed of Hilldale, Utah has determined that Steed violated the Utah law against bigamy by marrying three sisters."

Act III: Internet and IP

Since these subjects are the usual focus of this blog, here are a few links that won't cannibalize the rest of my source material for the week.

Raymond Nimmer looks at Google Print: Google lawsuit begins; fair use.

William Patry Two Fair Use Cases: "The first involved Jeff Koons appropriating yet again another photographer's work. The second involved use of very small excerpts from a classical musical performance by a nonprofit satellite program about the arts. The results in the cases are the opposite of what one would expect from this introduction."

Eric Goldman discusses a Search Engine Indexing Case--Newborn v. Yahoo: "We got a new case on search engine liability for indexing content. The importance of the topic makes the case blog-worthy, even though this particular case gives very little insight into the legal propriety of search engine indexing."

Laura Quilter is ruminating on … rumination? information? tinkering? imagination?: "For some time (years, literally) I’ve been pondering the perfect phrase to capture ‘information rights’ — the natural right people have to create, invent, tinker, think, imagine, ponder, access information, etc. The First Amendment conceptual toolkit doesn’t really measure up: we have First Amendment concepts for speaking and the corollary, listening. But these concepts don’t fully capture the rights which are restricted by intellectual property laws, government Secrets Acts, and the like."

The Patent Prospector: Coffee Beer: "Nestec, a subsidiary of Swiss-based Nestlé, has filed patents (WIPO application) in every major market worldwide for 'coffee beer.'"

Here are two reports from last week's P2P Litigation Summit in Chicago: Derek Slater podcasted his reactions: First Thoughts and Take Two. Ray Beckerman posted a text report on the p2p litigation summit.

Cardozo Law Prof and first-rate blogger Susan Crawford was nominated to the ICANN board and should be a positive impact on internet governance.

At Legislating IP, I discussed new proposed bills to authorize the FCC to implement the Broadcast Flag and plug the Analog Hole.

Act IV: Useful Advice and Practice Tips

The vast majority of posts suggested by the smart Blawg Review contributors could be grouped very generally under this heading.

Interviews and First Impressions

Litigation and Trials

The Business of the Practice of Law

Organizing Information

The Ivory Tower


Act V: Issue to Watch: National Security Letters, Torture and Executive Power

Law profs Wendy Seltzer, Daniel Solove and Orin Kerr all posted about the rising use of National Security Letters (NSLs) last week. NSLs are secret subpoenas the government can use to collect information on communications and transaction information. with no requirement of probable cause. These can be used without judicial authorization. The FBI simply issues the letter and gets the information. Oh, and there's a gag order that prevents the institution receiving the letter from disclosing this fact.

Opinio Juris discuses Executive Deference and the CIA's "Black Sites": ""it is useful to keep in mind that such deference, even in issues relating to foreign affairs and national security, is not always a good thing."

Finally, Fafblog (The World's Only Source for Fafblog) has its own unique take on the use of torture: We Are All Torturers Now: "It's time to combine the good old-fashioned tradition of American volunteerism with the brand new traditions of forced sleep deprivation and genital electrocution."

Act. VI: The Next Blogger Book Deal?

One of my favorite blogs about lawyerly life, Opinionistas, gets a writeup in the Sunday Times (City Section): Blogging the Firm. One example post begins: Lottery "My department has chosen an associate sacrifice. I've seen it happen before, apparently the phenomenon isn't uncommon. The ritual begins with the senior and midlevel associates furtively selecting a member of the newest batch of fledgling first years, still rosy-cheeked and ravenous for their initial paychecks. It could be anyone, from great schools, sporting a glowing transcript and resume, a fresh arrival who has absolutely no clue what it feels like to be openly despised by her peers."

O seems to be following the Blachman method of transitioning from law to literature: 1. Write a clever anonymous blog. 2. Get publicity in the NY Times. 3. Book deal! Hey, I'd buy her book.


That's all for this week's edition of Blawg Review. To learn about upcoming hosts and how to submit posts, visit the Blawg Review web site.

Next week on Blawg Review…

…Blawg Review visits Jag Central, the world's first weblog devoted to military justice and military law issues.
Howard Bashman blogs events before they occur (cut to: Bashman leaving 3rd Circuit courthouse in a De Lorean)
…A3G has the dirt on the next (if necessary) potential Supreme Court nominee-- a nominee who will skew younger. With juries and so forth.


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