It's a shame this happened a week before LawBeat took to the airwaves. But, through the magic of time travel, I will revisit it before it grows too old. Justice Antonin Scalia's much-reported remarks on the common sins of legal reporters got some of our better legal writers in a tizzy. But is he really that far off when he says, according to the AP:

The press is never going to report judicial opinions accurately.... [Reporting focuses on] "Who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy?"

Let the record reflect, neither Dahlia Lithwick nor her peers take this mindless tack when covering litigation. But here's a news bulletin: Lots of lesser beings, at lesser publications and broadcast outlets, do. Scalia is guilty of generalizing to the point of overstatement. But he's not all wrong.

When is the great state of Texas (said without irony) going to give its killing machine a much-needed tune-up? Thanks to Chuck Lindell of the Austin American-Statesman, we now can read a new chapter in a long, shameful history of shabby legal help for Texas death row inmates (and thanks to WashingtonPost.com’s Andrew Cohen for the link to last Sunday’s American-Statesman).

After clearly explaining what due process means after someone is sentenced to death, Lindell lays out the problem:

Done properly, a habeas writ reinvestigates every aspect of the case to ensure that a death sentence was properly levied. Did defense lawyers perform adequately? Was the jury properly picked? Had witnesses recanted? Did prosecutors hide evidence or police coerce a confession? The answers should provide confidence — for death penalty supporters and opponents alike — that the right person will be executed, the wrong person won't be, and verdicts were obtained in accordance with the U.S. and Texas constitutions. Instead, the American-Statesman's review of the state writ system found a pattern of feeble death penalty appeals, demonstrating little or none of the investigation or thoughtful effort required to do the job right. The response from the court has been similarly feeble.

Lindell’s examples of pathetically inept and lazy lawyering — taken from his study of an 11-year span when Texas executed 273 people — should shame even the most ardent capital-punishment proponent. Of course, the same sense of shame should have occurred to that person after similar problems were documented in past decades. (Is LawBeat sounding like a typical ivory-tower liberal? You be the judge. But, FYI, he spent a chunk of his young adulthood knee-deep in gore in Houston, covering the most murderous phase of the city’s history, and many of its capital murder trials, so at least he can say he has seen the evil up close.)

Update: Lindell follows up on Dec. 12 with this report on new rules that allow the state's highest criminal court to police the quality of lawyering. Looks like progress.

Fortune’s Peter Elkind has the cover story on the upcoming trial of what the magazine calls “America’s meanest law firm”: the class-action powerhouse formerly known as Milberg Weiss, now known as a defendant in a federal indictment. This story has been heavily covered for years. The trial is at least a year away. So what’s the billboard graf promise?

Even as its empire crumbles, Milberg Weiss has fired back, belittling the government's evidence, wrapping itself in legal principle, charging partisan politics by the trial-lawyer-hating Bush administration, and accusing the Justice Department of gross overreaching. But the truth is that Milberg Weiss is hemorrhaging from self-inflicted wounds: greed, hubris, lies, conflicts of interest, and shockingly poor governance - the very sort of venality and dysfunction that make for a juicy class-action lawsuit. It makes for a wild yarn too - one with important implications for how our companies and courts do business. From a defrocked ophthalmologist with a taste for insurance scams to a retired speculator once known as Seymour the Head, Milberg Weiss's downfall is an improbable saga of deceit and payback. Our story begins, as one law enforcement official puts it, "with a b**** slap."

Nice. LawBeat is a sucker for white-collar crime tales told with blue-collar sass. Elkind, no slouch as a reporter or writer, tells this one well. (But what’s with all the asterisks, Fortune? The story has several bleeped-out words that aren’t exactly foreign to the boardrooms where Fortune is read, or to magazines this side of Highlights. Awfully prim of them.) The crux of the story is the deal-cutting characters on the margin of society who traded in Milberg Weiss’ scalp to save their own. I smell a book! Peter, you’re well along toward that goal already, with this 8,700-word monster. Elkind’s last book was The Smartest Guys in the Room, on the Enron debacle (co-written with Bethany McLean). (Thanks to How Appealing for the link.)

Normally the over-used phrase in the title of this post refers to Linda Greenhouse’s supposed influence over a Supreme Court that wants praise from The New York Times. Here, I mean it more literally, as the Times’ longtime Court reporter turns up the heat on the justices. The abortion cases to be argued this Wednesday aren’t just potential watersheds in abortion law, Greenhouse writes in a Week in Review analysis. The Court also “must go a long way toward defining its stance toward precedent, its relationship to Congress, and its view of its own role in the constitutional system. As it decides the new cases, the still-emerging Roberts court will inevitably be defining itself.” Sounds like a busy week ahead at 1 First St., N.E.!

Worth reading:

• Terry Eastland profiles Antonin Scalia in The Weekly Standard.
• The Times' Julia Preston quotes four experts in a report that concludes experts "broadly agree" Saddam Hussein got a flawed but fundamentally fair trial.

Philadelphia’s legal newspaper reports on an innovative media-relations technique used by the federal judge in a case against entertainer Bill Cosby. Reporter Shannon Duffy quotes Judge Eduardo Robreno as worrying about comments both sides lawyers might make to the media, given the salacious nature of the sexual assault civil claims against Cosby. Nothing new there. Judges often have such worries, because intense media coverage of the spin that lawyers put on their case can result in an unfair trial. But Robreno rejected the two standard remedies: relying on state regulators to punish lawyers for unethical behavior (takes too long, happening long after a case is over, he said) or placing a gag order on the lawyers. In language extolling the public’s interest in watching their courts, Robreno wrote (as quoted by Duffy):

 The lamp of public scrutiny shining brightly over the proceedings can assist the court in reaching a just result under the watchful eye of an informed public. When, however, counsel seeks to use this light not to enlighten but to distort, not to inform but to proselytize, the fragile accommodation between the right to a fair trial and the exercise of free expression is put at risk

 Robreno’s solution? He took the state’s ethical rules on talking to the media and built them into his own court’s rules on how he would conduct the case. That meant he wouldn’t gag the lawyers, but could immediately punish lawyer misbehavior. Pretty nifty solution to an old problem because it doesn’t prohibit lawyers from helping reporters understand what’s going on in the case. Alas, we won’t get to see how well this idea works in this case. Cosby settled.

Did Justice Anthony Kennedy — the heavily touted swing vote in abortion cases (and in many others) — tip his hand in yesterday’s oral arguments in this term’s big abortion tests? If so, which way might he vote?

NPR's Nina Totenberg, Charles Lane in the Washington Post, Slate’s Dahlia Lithwick, and Joan Biskupic in USA Today: no real hints from Kennedy.

SCOTUSblog’s Lyle Denniston, Linda Greenhouse in The New York Times, Tony Mauro in Legal Times, and Jess Bravin in The Wall Street Journal: Kennedy suggests he might vote to strike down the federal ban on so-called partial-birth abortions, even though he voted differently earlier. (Denniston goes further out on the limb than others, calling Kennedy’s hints “clear.”)

David Savage in The Los Angeles Times: Kennedy hints that he could uphold the law.

Of course, not all agree Kennedy is even a swing vote in this case.

What’s all this add up to? Not a lot. Predicting votes is a notoriously inexact science. Justices quiz the lawyers during oral arguments to learn more, clear up confusion, score political points, convince another justice of something, play devil’s advocate, or all of the above. It’s tough to tell what a question reveals about underlying motives, and the results — usually months away — often contradict the hunches. But no matter how pointless the game of prediction is, it goes on. After all, it’s the most fun a Court reporter can have when trying to make the dry and technical arguments come to life.

Adam Liptak is no slouch when it comes to First Amendment law. After all, he practiced it in-house as a New York Times lawyer before he left the legal staff for the news staff, where he covers a wide range of legal issues. So it’s not surprising that on today's front page he tackles a difficult concept — finding the line in intellectual property law between free expression and free enterprise — with a fascinating example. Artist Daniel Moore makes realistic paintings of University of Alabama football games, which he then sells as original art, prints, and on merchandise. The university has tackled Moore on trademark grounds, arguing that Moore’s art doesn’t interpret, it merely lifts images that the university considers its property. The story leaves a number of questions unanswered — support for the claim that this is a trend in collegiate sports, exploring whether an artist would be in better legal shape if he didn’t use photos as reference points, and how media access to games is conditioned on ceding rights to a university. Luckily, the Times also published a slide show, “Art and the Law,” narrated by Liptak with images from analogous cases, in which he more plainly explains the workings of trademark and right-of-publicity law.

Veteran legal reporter Jan Crawford Greenburg, new to ABC News from the Chicago Tribune’s Supreme Court beat and the PBS NewsHour, had a seven-minute “Nightline” segment last night on Chief Justice John Roberts. The piece was one part taped bio, one part Q&A on a stage at the University of Miami. Did news happen? No, not unless you’re in that very small clique of Court junkies who will ponder endlessly what it means that the youngest chief justice since Federalist times writes his opinions in longhand (with a quill pen? He didn’t say). The real impact of Roberts’ first network-news appearance as chief is that he did it at all. Polished, confident, and human, Roberts deserves credit for leaving the marble palace for some public exposure and civics teaching.

Legal journo trivia: The "Nightline" anchor introducing Greenburg's piece, Terry Moran, is also an experienced legal journalist. Before superstardom, he covered law at ABC, Court TV, and Legal Times. His fellow "Nightline" anchor Cynthia McFadden? You guessed it: legal journalist (ABC News, Court TV).

Update: Dahlia Lithwick agrees that this public role for Roberts, and similar overtures recently by other justices, is a healthy turn of events. Except she said it better than I did.

How much is a judge’s reputation worth? Seven million dollars, says an Illinois jury. The state’s Supreme Court chief justice, Robert Thomas, today won the huge libel verdict against a small-town paper, the Kane County Chronicle, for columns the paper published that portrayed the chief justice — falsely, said the jury — as a backroom political operator. Thomas argued that having his integrity impugned would ruin his chances to strike it rich at a big law firm when his term is up. Here’s the Chicago Tribune’s report on the verdict, and How Appealing’s collection of links to coverage of the trial. Regardless of the facts and the law in this case, it’s worth remembering that big libel verdicts rarely survive appeals.

Roger Parloff looks at all the smoke surrounding Silicon Valley superlawyer Larry Sonsini, but finds no fire. His piece is in the November 27 issue of the magazine. Parloff’s subject is a natural business-and-lawyers story. Sonsini has taken some hits for his role in the recent scandals over backdating stock options and plugging leaks at Hewlett-Packard. Parloff himself is a natural for such a story — if you want it to reach a clear verdict. He’s well known in the business for his ability to reach clarity when staring at a complicated mess of highly spun facts. 

I found the article via Parloff's blog, Legal Pad. He's asking readers for their comments on the story.

LawBeat knows he shouldn’t keep coming back to the Simpson and Regan show, but it’s the car wreck that we can’t help but stare at. In her attempts to justify her exploitation of a double-murder, publisher Judith Regan likens what she’s doing to Katie Couric’s interview with O.J., Barbara Walters’ with the Menendez parent-killers, and a “60 Minutes” segment with Oklahoma City bomber Timothy McVeigh. But here’s the critical difference: Regan’s interview of Simpson on Fox is pure book promotion — an infomercial. Which highlights the difference between book publishing and news media. Big, mainstream publishers like Regan are promoters, not journalists. Their chief allegiance is to book sales, not truth-telling. They routinely ignore such niceties as “editing” and “fact-checking.”

Does the public appreciate the different shades of editorial standards? Not always. When we do what we do, many believe, we're only seeking ratings or selling magazines and papers. But there truly is a difference. Evidently Judith Regan hopes that the public doesn't know that, or doesn't agree. So she subjects us to her real handiwork as a huckster — in what may be the most over-the-top book promotion stunt of all time.

The Washington Post’s Style section serves as a showcase of wonderful news-feature writing. David Montgomery lives up to that tradition today with his post-election piece on the Federalist Society. It’s wry without mocking, affectionate without fawning. The story’s central point: At a gathering this week, the Federalists didn’t act like their caricature of the all-powerful secret society. But they weren’t sulking after Nov. 7 either. Montgomery writes:

So no secret handshakes in the Mayflower this week. Just the lawyer's uniform of charcoal or blue wool, and everywhere the black silhouette of James Madison, the patron saint of the society -- looking left, by the way. The hotel was thick with Democratic filibuster-bait: Priscilla R. Owen, Brett M. Kavanaugh, William H. Pryor Jr. -- all appellate judges with past confirmation battles.

The story works in Style because it’s timely and off the news, delivering atmospherics rather than urgent headlines.

Update: The Times' Neil Lewis take a more traditional approach, and the mood he senses at the Federalists' convention is much darker.

Is Samuel Alito “a little sore” from his rough confirmation hearings? Or was he simply playing to his Federalist Society audience when he made some rather barbed comments about his treatment by the Senate? That’s the question that Robert Barnes asks but doesn’t answer in his Washington Post “Letter from the Supreme Court” today comparing Alito’s and Chief Justice John Roberts’ public comments in different forums last week. Alito’s comments sounded like pretty light jokes to me, but regardless, Barnes’ broader point is well taken: Alito’s and Roberts’ appearances were not at all alike.

Newsweek’s Mark Miller, Andrew Murr and Weston Kosova offer a new O.J. tidbit (at least it’s new to me): that Simpson’s lawyer Yale Galanter claims he was clueless about the publishing deal with Judith Regan — and that the books whole premise is hyped beyond what the book actually says.  Here’s the juicy bit: 

Galanter, Simpson's lawyer, bluntly admits he's "p---ed" O.J. kept him in the dark about it. He calls the profits "blood money," and says, "I definitely would not have approved this." Galanter says the whole thing is something of a bait-and-switch. Only one of the seven chapters deals with the murder, he says, and nowhere does O.J. admit to killing anyone. Even so, Galanter says, "I wouldn't have done it for a gazillion dollars."

 Is that bluntness, or just savvy?

How can a state court system fairly judge a case involving its chief justice? That’s the question that Katharine Seelye touches on in this recap of last week’s $7 million libel verdict against The Kane County Chronicle in Illinois. The state’s chief, Robert Thomas, convinced a jury that Chronicle columnist Bill Page showed actual malice in his reporting on whether the judge decided cases based political favors. The story doesn’t delve too far into the paper’s options on appeal or on the state’s rules on disqualifying judges when they have a stake in a case. But Seelye notes that federal court is an option if the state Supreme Court — many of whose justices testified at the trial for the chief — can’t or shouldn’t hear it. Appeals aren’t quick, Seelye notes by making the bleak (house) analogy to a 23-year libel battle between a Pennsylvania judge and the Philadelphia Inquirer.

Kids, we're breaking news now. Hold on for the ride. Earlier I noted a Washington Post piece by Bob Barnes. Curious why the Post's Court reporter Chuck Lane (shown here) had let this qualified interloper onto his turf, I e-mailed Barnes, a veteran political writer. Here's his response:

Chuck has taken a book leave, and I'm filling in for him for the remainder of the term. I was covering politics until Nov. 8, so I am quickly trying to get up to speed.

Update: Lane says his book will examine the violent aftermath of a Reconstruction-era Supreme Court decision. At least it's not about Stephen Glass! (For those not in on the quip: Lane was The New Republic editor who was duped by, and fired, the infamous fabulist.)

William Glaberson's remarkable series in September, "Broken Bench," documented a backwards system of justice in New York's town courts. Here's how the series started:

Some of the courtrooms are not even courtrooms: tiny offices or basement rooms without a judge’s bench or jury box. Sometimes the public is not admitted, witnesses are not sworn to tell the truth, and there is no word-for-word record of the proceedings. Nearly three-quarters of the judges are not lawyers, and many — truck drivers, sewer workers or laborers — have scant grasp of the most basic legal principles. Some never got through high school, and at least one went no further than grade school. But serious things happen in these little rooms all over New York State. People have been sent to jail without a guilty plea or a trial, or tossed from their homes without a proper proceeding. In violation of the law, defendants have been refused lawyers, or sentenced to weeks in jail because they cannot pay a fine. Frightened women have been denied protection from abuse.

Now the state's chief judge, Judith Kaye, is ordering improved training and supervision of the town justices. But she stopped short of calling for legislative fixes, and some critics are already labeling the reforms as half measures. The state Assembly starts hearings next month, Glaberson reports. The big question will be: Is the Legislature serving the public interest or a patronage system that's gone around the bend?

An investigative reporter's biggest reward is to see a chronic problem solved because of the spotlight the reporter turned on it. Glaberson's part of the way toward that reward.

Next Sunday's Times Magazine has an analysis of Justice Scalia's war-on-terror jurisprudence. Is this a new legal writer? The name rings a bell.

In today's O.J. news (I'm having bad flashbacks to 1995, what with this all-O.J.-all-the-time coverage), a brief mention in an AP story sends me into a Googling frenzy. Here's what started it:

“I made it clear from the first day I met the writer that I wasn’t involved,” Simpson said on WTPS-AM in Miami. “I said, ‘I have nothing to confess.’ ”

"The writer?" Do tell. Turns out various bloggers and tabloids have speculated that Pablo Fenjves, a witness in Simpson's trial and former National Enquirer colleague of O.J.'s publisher Judith Regan, penned "If I Did It." This revelation comes from none other than the National Enquirer, at least according to the Daily News (no mention of it that I could find on the Enquirer site). Could this story get any weirder?

It does serve as a reminder how the Enquirer consistently scooped its more reputable competition during the O.J. case, earning grudging admiration for its solid, insider reporting (at least on that case - I'm no expert on it generally).

While I was speculating on O.J.'s ghostwriter, Jeffrey Toobin was doing some real reporting. Toobin, who covered the trial and wrote a fine book about it -- "The Run of His Life" (Random House) -- writes in a "Talk of the Town" story in this week's New Yorker the story of how Pablo Fenjves and Judith Regan met at the National Enquirer, their prior publishing collaborations, and Fenjves' notable testimony at Simpson's murder trial. Here's Fenjves' justifier:

“I think you’d be hard pressed to find a reporter in this country who, given the opportunity to sit down and take a confession from O. J. Simpson, no matter how oblique, would have refused to do so,” he [told Toobin] last week, over the telephone. “It wasn’t a moral issue with me.”

Um, except not every reporter would do it in the employ of a publisher who was putting millions of dollars into Simpson's murderous little hands (hypothetically speaking).

David Carr's "Media Equation" column today shadows Hearst's chief lawyer Eve Burton as she spends her days trying to keep two San Francisco Chronicle reporters on the "Balco" investigation out of jail. The story suggests a legal journalism quiz.

Are reporters facing more subpoenas for their notes and confidential sources because:

A) the public hates them
B) the law has changed
C) reporters have failed to convince the public that important stories won't be told if subpoenas keep piling up
D) all of the above.

The answer, of course, is D. And the fiendish irony is that of all the legal stories we journalists might explain to the public, we're failing spectacularly with the one that hits closest to home. “This is what we do now,” Burton tells Carr as she describes the 80 newsroom subpoenas she and her staff fought over the past 18 months. “The culture of the press as an independent body is now under attack and if this continues, will come to be seen as an investigative arm of the government.”

That's the issue. And yet the public, Carr writes, sees it -- if it thinks about it at all -- as just more whining from a privileged elite. This is the kind of media reporting we need. If that supplants one more story about Katie Couric's legs or Jon Stewart's wit, then so be it.

Raymund Flandez goes beyond the obvious in a story in today's Journal (subscription required) about the high cost of winning a trademark suit (yes, we're still on an intellectual-property-coverage binge). The first-day story is that a federal court threw out a claim by luxury-goods maker LVMH Moët Hennessy Louis Vuitton SA that a small Las Vegas maker of dog toys violated LVMH's trademarks by calling one of its toys "Chewy Vuiton." It's parody, the court said. Get over it. The case was the first to test a revised federal statute giving trademark owners more power to protect their marks.

Flandez advances the story by looking at the economics of the win by toymaker Haute Diggity Dog (puns galore in this case). Here's the nut graf:

The case illustrates how lawsuits from big companies are a Catch-22 for small businesses. They are forced to go up against deep-pocketed big players and have to decide whether to roll over or fight back. Even if they win, the legal battle takes a tremendous toll on resources.

Haute's legal fees to defend itself: $200,000, quadruple what it expected. And the company's business took a hit, losing distributors that were nervous about getting sued themselves.

A few gaps in the story: Not much reporting to back up the generalities of the nut graf. Which is OK, since it's not exactly a novel observation, but the story would be stronger if Flandez showed how the trend has changed, if at all. And no mentions of whether LVMH plans an appeal, or why defense fees exceeded expectations so far (my guess: their expectations were pretty low to start with, considering what an all-out battle can cost). Overall, though, an enterprising take on the story.

Dahlia Lithwick proves once again why she's one of our most important legal journalists in this essay chastising the Supreme Court for allowing same-day public access to the recordings of oral arguments only selectively. Great lines abound:

It's the modern-day equivalent of the feudal lord opening up the castle to his serfs for one drunken night at Christmas: It's condescending, it's irrational, and it reinforces the worst stereotypes about a secretive, elitist high court.

After listing the hot-button social-issue cases in which the Court has granted same-day access, Lithwick writes:

If the Supreme Court justices really want the public to recognize that what they do is subtle and legal, as opposed to ideologically driven, why would they release the audio in precisely those cases in which they are most stridently split? Why reinforce the stereotype of a partisan 5-4 court that splits along the most-basic liberal/conservative lines? Maybe the court should do itself a favor and broadcast only the easiest cases (where the justices all agree) or only the most technical ones (where nobody gets to say the word fetus). If the justices learned anything at their respective Thanksgiving tables last weekend, you'd think it was that if you must bicker about affirmative action and abortion, it's better not to do it in front of the children.

Exactly right. And exactly why the Court has no business making editorial judgments in the first place.